1. Purpose
1.1. Members of the Immigration and Refugee Board of Canada (IRB) are held to high standards of conduct as specified in the
Code of conduct for members of the Immigration and Refugee Board of Canada (the code).These procedures describe the process for addressing conduct-related complaints about members of the IRB.
2. Effective date
2.1. These procedures were approved by the Chairperson of the IRB and came into effect on December 21, 2017. They were subsequently revised on June 30, 2022.
3. Application
3.1. A complaint may be made about any member of the IRB (i.e., an individual who has authority to make refugee or immigration-related decisions), including full-time or part-time members, and members who also have a management role.
3.2. A complaint may be made by any individual (including counsel), any party to an IRB proceeding, IRB personnel, an organization, or the public.
3.3. A complaint must be about the conduct of a member which is believed to be contrary to the standards of conduct set out in sections 9 to 15 of the code. A complaint cannot be about:
- a ruling made by a member in their capacity as a decision-maker
- how a member exercises their adjudicative discretion
Complaints under this process can only be about the conduct of a member. Complaints must refer to the section of the standards of conduct (sections 9 to 15) of the code that the complainant believes was not followed by the member. The complaints process is not intended to deal with allegations related to other sections in the code.
Complaints cannot be about what a member decides in a case or how they exercise their adjudicative discretion. When there are concerns about a member’s decision,or where there are concerns about a denial of procedural fairness, the appropriate approach is to file an appeal with the Refugee Appeal Division or the Immigration Appeal Division, or to seek leave and judicial review with the Federal Court, as appropriate.
An allegation of bias may or may not be related to member conduct. An allegation of bias can fall within the scope of these procedures, if the allegation concerns the member’s conduct (for example, an inappropriate comment or action by a member related to discrimination based on gender, race, nationality, ethnicity, sexual orientation, etc.). However, if the allegation of bias relates to the exercise of adjudicative discretion (for example, the member was not impartial or procedural decisions/choices made by the member were not fair), the allegation would not fall within the scope of the complaints process and the appropriate approach is to file an appeal or to seek leave and judicial review as appropriate.
3.4. The conduct may have occurred inside or outside the hearing room.
3.5. These procedures do not limit the rights that members may have, including rights under any applicable collective agreement, legislation, policies, or codes.
4. How to make a complaint
4.1. A complaint about the conduct of a member may be made to the Office of the Ombudsperson, in one of the following ways:
4.2 A complaint should be submitted using the
complaint form, and should include:
- the name and contact information of the person making the complaint (the complainant)
- the name and contact information of the complainant’s representative (if applicable)
- the name of the member who is the subject of the complaint (the member)
- the IRB file number (if any)
- the specific section(s) of the
standards of conduct (i.e., sections 9 to 15) of the code which the complainant alleges was breached and a description of the conduct
- any other information which supports the complaint
4.3 The Office of the Ombudsperson will not accept an anonymous complaint about the conduct of a member through the member complaints process. An anonymous complaint is considered one in which an individual does not provide their name and contact information to the Office of the Ombudsperson or does not wish to share their identity beyond the Office of the Ombudsperson.
Anonymous complaints are not accepted as a matter of practice consistent with the principles of natural justice and procedural fairness. In addition, the Office cannot provide assurance regarding the protection of a complainant’s identity given the application of the
Access to Information Act, the
Privacy Act, or as required by law.
Nonetheless, the Office of the Ombudsperson will, to the extent possible and appropriate, assess the information provided by an individual and identify a possible course of action outside of these procedures.
5. Alternative dispute resolution of a complaint
5.1. The Office of the Ombudsperson will attempt alternative dispute resolution to informally resolve a complaint about the conduct of a member, to the satisfaction of both parties, where it is appropriate to do so at any stage of the complaint process.
6. Intake and screening process
6.1 When a complaint is received, the IRB’s Office of the Ombudsperson will send an acknowledgement of receipt to the complainant.
6.2 The Ombudsperson will make recommendations to the Chairperson about whether the allegations in a complaint relate to the conduct of a member and about the next steps in the complaints process. After considering the recommendations from the Ombudsperson and reviewing the complaint and other relevant information, the Chairperson may choose to:
- refer some, or all, of the allegations to the Ombudsperson or an external investigator to be investigated, having concluded that those allegations are within the scope of these procedures (relates to the conduct of a member).
Where allegations are within the scope of these procedures, they normally will be referred to the Ombudsperson to be investigated.
In some cases, the Chairperson may decide to refer the allegations to an external investigator after consideration of relevant factors including:
- the nature and severity of the allegations
- the complexity of the complaint and investigation
- the need to ensure a timely resolution of a complaint
- the availability of internal resources (or lack thereof)
- the need for an investigator with specific expertise or training
- any concerns regarding the impartiality (or the perception thereof) of an internal investigation
- reputational risk to the IRB
- dismiss some or all of the allegations, having concluded that those allegations are not within the scope of these procedures because the allegations either:
- do not relate to the conduct of a member which is believed to be contrary to the standards of conduct (sections 9 to 15) of the code
- are frivolous or vexatious, or are otherwise an abuse of process
- take any other action which the Chairperson deems to be required in the circumstances
For example, allegations which have been dismissed because they do not relate to the conduct of a member could be referred to a Deputy Chairperson for action, by the Chairperson at their discretion
6.3 If the Chairperson dismisses all allegations in the complaint under sections 6.2 b), the complainant, the member, as well as the Assistant Deputy Chairperson (ADC) and Deputy Chairperson (DC) will be informed of the reasons for the Chairperson’s screening decision and the file will be closed. The member, the ADC and the DC will also receive a copy of the complaint.
6.4 If the Chairperson decides to refer some, or all, of the allegations for investigation (under section 6.2 a), or to take any other action under section 6.2 c), the complainant, the member, as well as the relevant ADC and DC will all be informed of the reasons for the Chairperson’s screening decision. The member, the ADC and the DC will also receive a copy of the complaint.
6.5 If the proceedings before the member have not been finalized, as per section 10.1, the member, the ADC and the DC will not be informed about the complaint or the Chairperson’s screening decision until after the proceedings before the member have been finalized.
6.6 If a complaint is about an ADC or DC, they will not be informed in such a capacity but in their capacity as a member and respondent.
7. Investigations
7.1 If the Chairperson refers some, or all, of the allegations in a complaint to the Ombudsperson or to an external investigator to be investigated, they will conduct an investigation and prepare an investigation report. The direction provided by the Chairperson to the investigator may include specific timeframes and other instructions regarding deliverables.
7.2 The parties will be given the opportunity to meet with the investigator and to make submissions. The investigator will prepare a draft investigation report containing preliminary findings of fact and analysis and the parties will be given the opportunity to make submissions on the draft investigation report.
7.3 The final investigation report will contain findings of fact, analysis, and conclusions, including whether any of the standards of conduct (sections 9 to 15) of the code were breached. The report may also contain recommendations.
8. Final decision of the Chairperson
8.1 The final investigation report will be provided to the Chairperson.
8.2 After careful consideration of the investigation report and having ensured that the principle of procedural fairness was applied throughout the process, the Chairperson will decide whether to accept the conclusions in the investigation report. The Chairperson will also decide whether there was a breach of
the standards of conduct (sections 9 to 15) of the code.
8.3 The Chairperson will inform the complainant, the member, the ADC, and the DC whether the standards of conduct (sections 9 to 15) of the code were breached and will provide reasons for the decision.
8.4 The member, the complainant, the ADC, and the DC will receive a copy of the investigation report which contains the findings of fact, analysis, conclusions, and any recommendations made by the investigator.
8.5 In deciding whether corrective or disciplinary measures are required, the Chairperson will take account of any incidents of prior misconduct, the gravity of the misconduct, or any other relevant factors and circumstances.
8.6 In addition to the Chairperson’s authority to impose disciplinary and corrective measures on public servant members, sections 176 to 186 of the
Immigration and Refugee Protection Act set out the procedures regarding remedial and disciplinary measures that may be imposed by the Minister on any member of the Immigration Appeal Division or the Refugee Appeal Division.
8.7 Corrective or disciplinary measures may range from training or a reprimand for less serious breaches of the standards of conduct in the code; to removal from the hearing room, suspension, and up to termination for serious or repeated breaches of the standards of conduct of the code.
The following factors and circumstances may be relevant in determining which corrective or disciplinary measures are appropriate:
- incidents of prior misconduct
- gravity of the conduct (including its impact on others)
- whether the breach was intentional
- whether the member has shown remorse, acceptance of responsibility, and understanding of the effect of the misconduct on others
- other aggravating and / or mitigating circumstances
- whether follow-up actions are needed to help maintain public confidence in the IRB
8.8 After the Chairperson has decided whether or not to accept the conclusions in the investigation report, and as such, has decided whether or not there was a breach of the standards of conduct of the code, the complaint will be closed.
9. Complaint process
9.1. Complaints will be dealt with as efficiently as possible, and in accordance with established
Service standards for the processing of member complaints.
9.2 The complaint process is confidential. The identities of the complainant, the member and other individuals will be protected, to the extent that it is possible to do so, subject to the principles of procedural fairness and the requirements of the
Privacy Act and the
Access to Information Act.
9.3 The IRB has a duty to accommodate and will make best efforts to accommodate the particular needs of complainants and members where their needs are made known to the Office of the Ombudsperson.
10. Ongoing proceedings before the IRB
10.1 A complaint will be temporarily on-hold and will not be referred for investigation under section 6.2 a) if the case related to the complaint is still before the member who is the subject of the complaint. Once the proceedings before the member have been finalized the complaint will be referred for investigation under section 6.2 a).
10.2 If an investigation is temporarily on-hold, the Office of the Ombudsperson will monitor the status of the proceedings, will maintain communication with the complainant, and will inform the parties about next steps in the complaint process once the proceedings before the member are finalized.
If the case related to the complaint is still before the member who is the subject of the complaint, the complaint will be screened under section 5 of the procedures. If the Chairperson decides to dismiss all the allegations under section 6.2 b), the complainant will be notified, and the complaint file will be closed. The member will be notified of the outcome of the screening process once the proceedings before the member have been finalized.
If the Chairperson decides to refer some, or all, of the allegations for investigation under section 6.2 a), the investigation will be put on hold. The Office of the Ombudsperson monitors proceedings when complaints are put on hold and will maintain contact with the complainant. No further steps in the complaint process will be taken until the proceedings before the member have been finalized.
10.3 In exceptional circumstances, the Chairperson may decide that the complaint be dealt with immediately, even if the proceedings before the member have not been finalized. The complainant, the member, as well as the relevant ADC and DC will all be informed of the reasons for the Chairperson’s decision.
The threshold for this circumstance is high. Only complaints which contain very serious allegations or have other exceptional circumstances that may require immediate consideration, will be investigated even if the proceedings before the member have not been finalized.
The types of circumstances which would be considered exceptional include: if there has been serious harm to individuals (such as where a participant at a hearing has been gravely traumatized by the member’s alleged actions) and/or if public confidence and trust in the integrity of the IRB may be called into question if the complaint were to be temporarily put on-hold.
11. Roles and responsibilities
11.1 The Chairperson is responsible for the overall application of these procedures including:
- deciding whether to dismiss the allegations in a complaint
- deciding whether to refer the allegations in a complaint for investigation to the Office of the Ombudsperson or an external investigator
- deciding to take any other action which the Chairperson deems to be required in the circumstances
- deciding whether the standards of conduct of the code have been breached
- taking corrective or disciplinary measures as required
11.2 The Office of the Ombudsperson is independent from members and oversees the member complaints process. The Office is responsible for:
- the overall administration of these procedures
- communicating with parties about a complaint and explaining the complaint process to them
- making recommendations to the Chairperson
- conducting the investigation into allegations which were referred by the Chairperson
- the administrative procedures related to retaining the services of an external investigator, if applicable
- preparing the public reports
12. Public reporting
12.1 The IRB will publish annual reports which include a summary of finalized complaints, as well as trends and data metrics over the previous reporting period.
13. Enquiries
13.1. Enquiries related to these procedures should be directed to Office of the Ombudsperson by email (irb.irb-ombuds-conduct-conduite.cisr@irb-cisr.gc.ca), or by mail at the following address:
Immigration and Refugee Board of Canada
Minto Place, Canada Building
344 Slater Street, 14th floor
Ottawa, Ontario
Canada
K1A 0K1