Special reviews may be conducted where serious allegations are made about a member’s conduct outside of the complaints process.
The Chairperson initiated a special review into the conduct of an RPD member after serious allegations of misconduct were brought to his attention. The allegations related to a gender-based claim and questions posed by the member. The member was removed from hearing claims pending an investigation and completion of mandatory professional development.
The IRB retained the services of an external investigator to investigate the allegations of misconduct by the member. The investigator is an experienced human rights lawyer and an expert on professional misconduct as a member of the Law Society Tribunal.
The purpose of the investigation was to assist the Chairperson in deciding whether the member breached the Code of Conduct for Members of the IRB (Code of Conduct) and, if so, whether any follow-up actions would be taken.
The member was given the opportunity to make written submissions in response to the allegations and was invited to an interview with the investigator.
The external investigator submitted his investigation report to the IRB. As regards the questions the member asked the claimant during the hearing, the report stated that the questions related to a relevant subject area and acknowledged that the member was entitled to probe the credibility of the claim. However, the report concluded that the questions were offensive, insensitive, and inappropriate. The member persisted in asking the same question several times in different ways and the claimant was forced to answer various versions of the question several times. The language used effectively minimized the traumatic experience the claimant was describing. Further, the questioning was not carried out with sensitivity and respect and had the potential to create a traumatizing and anxiety-producing effect.
The investigation report also concluded that a comment which the member made about a mental health condition was unnecessary and disrespectful because it made light of the claimant’s mental health.
The Chairperson reviewed the investigation report. He was satisfied that the investigatory process was thorough, accurate and fair.
The Chairperson accepted the conclusions in the investigation report.
The Chairperson found that there was a breach of the Code of Conduct. The member’s conduct was not in keeping with the provisions in the Code of Conduct which require members to conduct hearings in a courteous and respectful manner, to promote public confidence in the integrity of the IRB, and to uphold the values of dignity and respect.
As regards follow up steps, the investigator recommended that the Chairperson should take a corrective and rehabilitative approach, rather than imposing discipline. The Chairperson agreed with the investigator’s recommendation and decided not to impose discipline for a number of reasons, including the following:
- The member expressed sincere regret and remorse;
- The member acknowledged the impact that the misconduct had on the claimant and the harm which was caused reputationally to the IRB;
- There was no prior record of misconduct; and
- The member accepted responsibility for the misconduct and committed to do better.
The Chairperson was satisfied that the misconduct would not occur again, with the implementation of the corrective measures mentioned below.
The member was informed about the decision in a letter from the Chairperson. The Chairperson also discussed the matter with the member and confirmed that corrective measures would be put in place.
The Deputy Chairperson of the Refugee Protection Division was informed of the results of the investigation and was tasked with determining the scope and duration of the corrective measures and to implement them as quickly as possible.
The member was required to undertake mandatory professional development. The Division prepared a detailed professional development action plan that the member was required to follow. A mentor was assigned and the member was put under close monitoring.
The special review was closed.