The complainant acted as Minister’s counsel on an application to the Refugee Protection Division (RPD) for vacation of the refugee status of a person who was in detention.
The complaint alleged that the choice of language and tone in the member’s correspondence was inflammatory and hostile. More specifically, the complaint alleged that:
- In a letter dated June 5, 2019, the member “insult[ed] the quality of an exhibit referring to it as ‘so-called’ statutory declaration”;
- The member also “insulted [the complainant’s] identification of two exhibits”; and
- The member’s letter dated June 19, 2019, was intended to bully the complainant into adhering to the member’s demands or the vacation application would be denied. The intention was to intimidate the complainant into withdrawing the vacation application. The letter was also a threat that the person concerned would remain in detention indefinitely.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether some of the allegations 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 the allegations were within the scope of the complaints process and referred the complaint to the Director of the Office of Integrity (the Director) for investigation.
The member was invited to provide the Director with a response to the complaint and subsequently provided written comments. A draft investigation report with preliminary findings of fact and analysis was prepared and the parties were provided with an opportunity to comment on it in writing and to contact the Director to discuss any aspect of the complaint or the draft investigation report. The member confirmed that he did not have any comments on the draft report, while the complainant filed submissions.
The complainant’s submissions contained new allegations, as follows:
- the member failed to carry out his legislative duty to deal with the Minister’s application for an expedited hearing with a sense of urgency considering that the person concerned was in detention; and
- the member requested extraneous documents, insisted on a change in document format and required consent from the person concerned to be removed to his country of origin.
The member made submissions in response to the complainant’s submissions. The investigation report was finalized after consideration of all submissions.
In the investigation report, the Director concluded that there was no breach of the
Code of Conduct for Members of the IRB (Code of Conduct) for the following reasons:
- The use of the term “so-called statutory declaration” in the member’s letter was not insulting. The dictionary definition of “so-called” explains that the term is “used to show that you think a word that is used is not suitable or correct”. The term expressed the member’s opinion that the statutory declaration was deficient for reasons which the member had pointed out to the complainant in prior correspondence.
- As regards the other exhibits, the member merely stated in his letter that the exhibits lacked an index and were not identified. The member’s comments about the exhibits were not insulting.
- The member had serious concerns which he pointed out to Minister’s counsel. However, the member’s letter did not contain bullying, intimidating or threatening language.
The Director stated in the investigation report that the member’s letter was direct and it reflected the member’s frustration. The member perceived that the complainant had resisted the member’s previous directions and he expressed his frustration with the situation.
The Director did not make findings of fact in the investigation report with respect to the new allegations which were raised by the complainant during the investigation. The Director concluded in the investigation report that these allegations fell within the member’s decision-making role and outside the scope of the complaints process which applies only to member conduct. The Director stated in the investigation report that he has no jurisdiction with respect to how the member exercised his adjudicative discretion in his capacity as an independent decision-maker. The proper remedy to address concerns about the exercise of a member’s adjudicative discretion is through the appeals process or judicial review. This approach is based in the legal requirement that adjudicative independence must not be “fettered” by outside influence.
The investigation report was provided to the Chairperson. He was satisfied that the investigation was thorough and fair. The Chairperson accepted the conclusions in the report and found that there was no breach of the
Code of Conduct.
Both parties were informed about the resolution of the complaint through decision letters from the Chairperson.
In the letter to the member, the Chairperson encouraged the member to keep in mind the importance of ensuring that his communications reflect a tactful approach at all times.
The complaint was dismissed, and the file was closed.