Case No. 18-016

The complainant appeared as counsel for a claimant before the Refugee Protection Division (RPD).

The allegations in the complaint relate to a statement made by the member regarding counsel in the reasons for decision delivered orally at the hearing, and subsequently transcribed as written reasons. In the reasons, the member commented on the competency of counsel, finding his lack of an attempt to obtain a copy of his client’s passport from U.S. authorities to fall short of an act of a competent or diligent lawyer.

The complainant alleged that:

  • the member questioned counsel’s competence as a lawyer on the record and
  • the member’s comments in the reasons for decision were disrespectful towards him and were a personal attack against him

The Chairperson referred the following issues to the Office of Integrity for investigation under paragraph 5.5 of the Procedures for Making a Complaint About a Member (Complaints Procedures):

  • the conduct of the member during the hearing and
  • comments made by the member in her reasons for decision regarding the complainant

The Director of Integrity listened to the audio recording of the hearing, reviewed the reasons for decision, the complaint and the member’s response.

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

The investigation findings are summarized as follows. The claimant had lived for an extended period in the U.S. prior to arriving in and claiming asylum in Canada. She arrived without any documents to confirm her identity, in part because her passport had been seized and was never returned by U.S authorities. After this was explained to the member at the hearing, the member asked counsel what steps he had undertaken to obtain the claimant’s passport from the U.S. authorities. Counsel responded that he had not taken any new steps, since his client had recently told him she herself reached out to her U.S. lawyer at the time who confirmed that the U.S. authorities had never returned the passport. He noted his client had tried to obtain a new passport from her home country without success. The member then turned her attention back to questioning the claimant.

In the reasons for decision, the member stated:

Her Canadian lawyer confirmed on the record that he had taken no steps and made no effort to contact the U.S. authorities for a copy of her passport. While I find this to fall short of an act of a competent or diligent lawyer, which I find very disappointing, I am not prepared to count it against the claimant. Once the claimant had retained counsel in Canada it was reasonable for her to assume that he would take the necessary steps to advocate for her and a competent lawyer should have known that identity was an issue.

The Director of Integrity concluded in his report that apart from procedural matters at the outset of the hearing, the exchange regarding the passport was the only substantive interaction between the member and counsel during the hearing. The member did not probe why counsel hadn’t taken any additional steps to obtain the passport, highlight the fact that identity is always an important issue or provide any indication of concern with counsel’s response to her query.

The Director of Integrity concluded that the member was not discourteous nor disrespectful towards the complainant during the proceedings.

The Director of Integrity’s investigation report concluded that the member issued her decision while carrying out her decision-making functions, and the allegations regarding comments in the decision fall outside the scope of the complaint process. Paragraph 3.3 of the Complaints Procedures states that "a complaint cannot be about a member’s decision". However, the report also noted that to ask a single question of counsel during the entire hearing, make no comment in response and then to include the above passage in the reasons for decision was, on the face of it, disproportionate and that the matter could certainly have been handled with more tact.

The member admitted that the language she used in the decision was unnecessarily blunt, and that in hindsight she regretted her choice of words.

However, because the allegation related to the member’s decision and not conduct, the Director of Integrity concluded that there was no breach of the Code of Conduct.

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 there was no breach of the Code of Conduct.

Both parties were informed about the resolution of the complaint. In his decision letter of April 29, 2019, he advised the parties that the member did not breach the Code of Conduct. However, while the Chairperson decided that the allegation regarding the comments in the decision were outside the scope of the Complaints Procedures and, therefore, there was no breach of the Code of Conduct, he informed the complainant that the member had admitted that the language she used in the decision was unnecessary and that she had expressed regret for her choice of words under the circumstances.

The complaint was dismissed and the file was closed.