Case No. 19-009

​The complainant appeared as counsel for a claimant before the Refugeeotection Division (RPD).

The allegations in the complaint relate to a three-minute exchange between the member and the complainant that occurred at the outset of the hearing. The member asked the complainant why he was late for the hearing. The complainant explained that he was not late for the hearing but the delay was caused by clearing security and getting to the hearing room.

The complainant stated in his complaint: “Upon arrival, I observed the member was extremely furious. He could not say a single word. My client and I could read his face as extremely unhappy. I could also observe that his tone was intimidating and condescending. There were angry outbursts. After starting the hearing, he lambasted me for coming late.”

The complainant made a number of allegations related to:

  • intimidation and condescending demeanour of the member​
  • angry outbursts at the beginning of the hearing
  • unprofessional conduct of the member
  • lack of respect towards counsel and
  • apprehension of bias

The complainant requested that the Member be prevented from hearing any matters where the complainant is counsel.

As regards the allegation related to bias, the complainant claimed that the member had already decided the outcome of the refugee claim because the member was upset with counsel for being late for the hearing.

The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether some of the allegations of the complaint were outside 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 those allegations relating to reasonable apprehension of bias would be screened out because allegations not related to conduct fall outside of the scope of the Procedures for Making a Complaint About a Member (Complaints Procedures).

The Chairperson referred the remaining allegations to the Office of Integrity for investigation under paragraph 5.5 of the Complaints Procedures.

The Director of Integrity listened to the audio recording of the proceeding and reviewed the member’s written response to the allegations in the complaint.

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

The hearing involved an RPD claim which was streamed for a short hearing pursuant to the Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division. A number of these files are scheduled in succession in a day. A delay in the start time of one of these hearings affects all those following that day.

The Director of Integrity stated in the investigation report that during the three-minute exchange the member was clear that counsel was late for the hearing. It was scheduled for 8:30 a.m. and due to his tardiness only began shortly before 9 a.m.

In the investigation report, the Director of Integrity indicated that at the hearing, the complainant provided a confusing account to the member when questioned as to why he was late. The complainant maintained that he had not been late for the hearing. He stated that he presented himself to the security desk on the ground floor at 8:32 a.m. “by my watch”, and was only late getting to the hearing room due to a delay in being escorted up by security personnel.

The Director of Integrity’s investigation report stated that the complainant hadn’t presented himself to the security desk by the scheduled start time for the hearing. In addition, the Notice of Hearing indicated that parties should be present 30 minutes in advance of the hearing. The Director of Integrity’s investigation report concluded that the complainant was clearly late for the hearing.

The audio recording revealed that the member showed respect towards counsel throughout the exchange. The member was frustrated with the complainant for being late and asked him directly, but professionally, to explain his lateness. Once he had heard the complainant’s position and explained the importance of hearings being on time, he proceeded.

In the investigation report, the Director of Integrity stated that the audio recording was completely at odds with the allegations made in the complaint. Any reasonable review of the audio recording would confirm that:

  • there was neither intimidation nor condescension by the member;
  • there were no angry outbursts at the beginning of the hearing;
  • the member conducted himself in a professional manner throughout; and
  • there was no evidence of lack of respect towards the complainant.

Counsel have an obligation to present themselves on time for IRB hearings, as outlined in the Notice of Hearing. The Director of Integrity concluded that the complainant was late for the hearing and did not take responsibility for his lateness. There was no evidence whatsoever that the conduct of the member was inappropriate.

The Director of Integrity concluded that the allegations were unfounded and that there was no breach of the Code of Conduct.

The Director of Integrity also concluded that, in any event, there were no grounds to grant the complainant’s request that he be placed on a list of individuals who cannot appear before the member. The purpose of the complaints process is to ensure an open and transparent mechanism to investigate complaints about member conduct. However, the process cannot be used as a mechanism to determine or influence which members hear cases before particular counsel.

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 letters of November 7, 2019, the Chairperson decided that the allegations about misconduct were unfounded and that the member met his obligations under the Code of Conduct.

The complaint was dismissed and the file was closed.

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

The allegations in the complaint relate to a three-minute exchange between the member and the complainant that occurred at the outset of the hearing. The member asked the complainant why he was late for the hearing. The complainant explained that he was not late for the hearing but the delay was caused by clearing security and getting to the hearing room.

The complainant stated in his complaint: “Upon arrival, I observed the member was extremely furious. He could not say a single word. My client and I could read his face as extremely unhappy. I could also observe that his tone was intimidating and condescending. There were angry outbursts. After starting the hearing, he lambasted me for coming late.”

The complainant made a number of allegations related to:

  • intimidation and condescending demeanour of the member;
  • angry outbursts at the beginning of the hearing;
  • unprofessional conduct of the member;
  • lack of respect towards counsel; and
  • apprehension of bias.

The complainant requested that the Member be prevented from hearing any matters where the complainant is counsel.

As regards the allegation related to bias, the complainant claimed that the member had already decided the outcome of the refugee claim because the member was upset with counsel for being late for the hearing.

The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether some of the allegations of the complaint were outside 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 those allegations relating to reasonable apprehension of bias would be screened out because allegations not related to conduct fall outside of the scope of the Procedures for Making a Complaint About a Member (Complaints Procedures).

The Chairperson referred the remaining allegations to the Office of Integrity for investigation under paragraph 5.5 of the Complaints Procedures.

The Director of Integrity listened to the audio recording of the proceeding and reviewed the member’s written response to the allegations in the complaint.

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

The hearing involved an RPD claim which was streamed for a short hearing pursuant to the Instructions Governing the Streaming of Less Complex Claims at the Refugee Protection Division. A number of these files are scheduled in succession in a day. A delay in the start time of one of these hearings affects all those following that day.

The Director of Integrity stated in the investigation report that during the three-minute exchange the member was clear that counsel was late for the hearing. It was scheduled for 8:30 a.m. and due to his tardiness only began shortly before 9 a.m.

In the investigation report, the Director of Integrity indicated that at the hearing, the complainant provided a confusing account to the member when questioned as to why he was late. The complainant maintained that he had not been late for the hearing. He stated that he presented himself to the security desk on the ground floor at 8:32 a.m. “by my watch”, and was only late getting to the hearing room due to a delay in being escorted up by security personnel.

The Director of Integrity’s investigation report stated that the complainant hadn’t presented himself to the security desk by the scheduled start time for the hearing. In addition, the Notice of Hearing indicated that parties should be present 30 minutes in advance of the hearing. The Director of Integrity’s investigation report concluded that the complainant was clearly late for the hearing.

The audio recording revealed that the member showed respect towards counsel throughout the exchange. The member was frustrated with the complainant for being late and asked him directly, but professionally, to explain his lateness. Once he had heard the complainant’s position and explained the importance of hearings being on time, he proceeded.

In the investigation report, the Director of Integrity stated that the audio recording was completely at odds with the allegations made in the complaint. Any reasonable review of the audio recording would confirm that:

  • there was neither intimidation nor condescension by the member;
  • there were no angry outbursts at the beginning of the hearing;
  • the member conducted himself in a professional manner throughout; and
  • there was no evidence of lack of respect towards the complainant.

Counsel have an obligation to present themselves on time for IRB hearings, as outlined in the Notice of Hearing. The Director of Integrity concluded that the complainant was late for the hearing and did not take responsibility for his lateness. There was no evidence whatsoever that the conduct of the member was inappropriate.

The Director of Integrity concluded that the allegations were unfounded and that there was no breach of the Code of Conduct.

The Director of Integrity also concluded that, in any event, there were no grounds to grant the complainant’s request that he be placed on a list of individuals who cannot appear before the member. The purpose of the complaints process is to ensure an open and transparent mechanism to investigate complaints about member conduct. However, the process cannot be used as a mechanism to determine or influence which members hear cases before particular counsel.

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 letters of November 7, 2019, the Chairperson decided that the allegations about misconduct were unfounded and that the member met his obligations under the Code of Conduct.

The complaint was dismissed and the file was closed.