The complainant was a Canada Border Services Agency hearings officer who appeared before the member at two Immigration Division (ID) detention review hearings.
The complaint alleged that the member did not let the complainant raise an objection and never dealt with an objection; cut the complainant off and did not afford her an opportunity to present submissions without interruption; and attempted to control and assert an air of authority over the complainant. The complaint also alleged that the member was demeaning and condescending, made statements that were disrespectful and unprofessional, and used a rude and belittling tone of voice.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether the allegations were within the scope of the complaints process under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures).
The Chairperson decided that the allegations were within scope and referred the complaint to the Director of the Office of Integrity (the Director) for investigation.
The member was invited to provide the Director with a response to the complaint and subsequently provided written comments. The Director listened to the audio recording of the proceedings, and reviewed the transcripts as well as the parties’ submissions. The Director prepared a draft investigation report containing preliminary findings of fact and analysis, and provided both parties an opportunity to comment on the report in writing and discuss any comments with him by telephone. The member confirmed that he did not have any comments on the draft report; the complainant provided written submissions. The Director then prepared a final investigation report.
In the investigation report, the Director concluded that there was no breach of the Code of Conduct for Members of the IRB (Code of Conduct) for the following reasons:
- Overall, the member’s conduct during the two hearings was courteous and professional.
- The question of whether the member erred by not allowing a party to make an objection or by failing to consider an objection relates to the exercise of adjudicative discretion and does not fall within the scope of the Complaints Procedures. However, to the extent that member conduct may have been at play – for instance, a disrespectful tone or statement – it was examined as part of the investigation.
- Counsels do not have a right to the uninterrupted presentation of their case. Members should play an active role in ensuring they have a sufficient evidentiary record upon which to base their decision, as explained in Chairperson Guideline 2: Detention. Throughout the hearings in question, the member intervened on numerous occasions with clarification questions or questions steering counsel to address what he perceived as gaps or matters of concern to him. The member was engaged in active questioning and hearing management. He did not interrupt the presentation of submissions in a rude or disrespectful manner.
- As regards the allegations that the member tried to control the complainant in the performance of her duties and was disrespectful and condescending towards her, the incidents complained of were examples of hearing management, undertaken by the member in a respectful manner.
- A member’s role includes directing the proceedings, eliciting the evidence needed in order to make a sound decision, and steering counsel to the required level of calmness and professionalism needed to run a fair and orderly hearing.
- A member might consider it necessary to outline matters such as procedure – and is entitled to do so – even if the counsels before him are experienced. Ensuring that parties understand the process advances the goal of having fair, orderly, and efficient proceedings. There was nothing condescending or disrespectful in the member's tone when he explained procedure to the complainant.
- The member’s remarks were not disrespectful or unprofessional.
While the investigation report concluded that the member did not breach the Code of Conduct, it acknowledged that some of the member’s mannerisms could be off-putting and misinterpreted, even if they were well intentioned. The complainant felt the member’s way of expressing himself to be patronizing and condescending. The report noted that the member, in his submissions filed during the investigation, committed to working to eliminate his habit of sighing (used as a mechanism to pace himself), which he acknowledged could be misread and perceived as disrespectful. The report stated that the member should be encouraged to dispense with the repeated use of such questions as “are you listening?” and “are you focusing?” and to ask these questions to counsel only when truly necessary. In addition, the member should be encouraged to be more mindful of how some of his remarks or expressions may be perceived by counsel appearing before him.
The investigation report was provided to the Chairperson. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and found that there was no breach of the Code of Conduct.
Both parties were informed about the resolution of the complaint through decision letters from the Chairperson.
In his decision letter to the member, the Chairperson encouraged the member to reflect, as part of his professional development, on the suggestions in the investigation report regarding the use of certain questions and expressions and how they may be perceived.
The complaint was dismissed, and the file was closed.