Case No. 18-018

The complainant was an official of the Canada Border Services Agency (CBSA) who took exception to the manner in which one of his employees, a hearings officer, was treated by a member of the Immigration Division (ID).

The allegations in the complaint relate to conduct of the member during a detention review hearing. The complainant expressed concerns about the member’s tone. The complainant alleged that the member was disrespectful, and raised his voice at times. The complainant also alleged that the Member did not “meet the standard of conduct as laid out in the members’ responsibilities to the parties.”

The complainant also alleged that the member did not approach this case with an open mind and was not impartial nor objective. Adjudicative matters of this nature fall outside the scope of the Complaints Procedures. Therefore, this aspect of the complaint was not referred for investigation.

The Chairperson referred the allegations related to the conduct of the member to the Office of Integrity for investigation under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures).

The Director of Integrity listened to the audio recording of the hearing and reviewed the written decision, the complaint, and the member’s submissions.

The Director prepared draft findings of fact and analysis and provided both parties with an opportunity to make submissions.

In his response to the allegations, the member expressed his regret with the tone he used at the hearing and in not displaying the decorum expected of a member of the IRB. The member recognized that the circumstances of the case did not excuse his behaviour at the hearing.

In the investigation report, the Director of Integrity stated that the member noted that he had requested at the previous detention hearing that certain steps be completed before the hearing in question. He expected the Minister’s representative to be prepared to address a particular identity form at this hearing, as he viewed it as resolving the very issue that the Minister’s representative had relied on to continue to seek detention of the person concerned.

There was a protracted and heated exchange between the member and the hearings officer about the form in question. The hearings officer took the position that it could not and should not be submitted with incorrect information included. The member responded in an animated manner stating that the document should have been submitted.

In his response to the allegations in the complaint, the member indicated that the Minister’s representative was “stalling” and was not proceeding in an expeditious manner to deal with new evidence presented that might lead to an alternative to detention. His frustration in this regard manifested itself in exasperated interruptions and comments directed at the hearings officer.

The Director of Integrity’s investigation report concluded that there are objective and neutral ways of challenging the Minister’s representative’s position, making the very same points and holding the Minister’s representative to task for certain perceived shortcomings in a normal tone of voice, without personalizing the exchange.

The investigation report concluded that the member’s tone and attitude were inappropriate and not in keeping with members’ obligations under the Code of Conduct. It was noted, however, that from the outset, the member recognized that his tone was not justified and he took responsibility for his actions.

The Chairperson reviewed the investigation report. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and decided that there was a breach of the Code of Conduct.

Both parties were informed about the resolution of the complaint. In his decision letters of June 6, 2019, the Chairperson informed the parties that the member’s tone at times was inappropriate and not in keeping with members’ obligations under the Code of Conduct.

The complaints process is intended to be corrective in nature. The Chairperson was satisfied that the member took the complaint seriously and he recognized that his behaviour fell short of the expected standards. Because of this acknowledgment on the part of the member, the Chairperson was satisfied that the member was fully aware of the expected behaviour going forward and that such an incident will not occur again.

The Deputy Chairperson of the ID was informed of the results of the investigation.

The Chairperson concluded that there was no need for any further follow-up action.

The complaint was founded and the file was closed.