A review of the complaint found that the allegations were not within the jurisdiction of the Member complaints process. The complaint was dismissed, and the file was closed.
The Complainant was counsel for a refugee claimant whose case was heard by a Member of the Refugee Protection Division. The Complainant alleged that the Member questioned the Claimants about information from a privileged conversation which took place during a break in the hearing, and which was recorded without their knowledge.
The Office of the Ombudsperson reviewed the complaint and found that the allegations were regarding adjudicative discretion, not conduct. The decision on how to mitigate procedural fairness issues as they arise is a matter of adjudicative decision-making. In this case, the Member recognised that the inadvertent recording of a privileged conversation is a question of procedural fairness and made an adjudicative decision on how to proceed.
The Ombudsperson therefore recommended to the Chairperson that the allegations be dismissed as they do not fall within the scope of the Procedures for Making a Complaint about a Member (the Procedures). The Chairperson agreed with the recommendation.