The complainant appeared before the member as counsel for a refugee claimant at a Refugee Protection Division (RPD) hearing. The member in question is no longer an employee of the IRB.
The hearing involved a refugee claimant who claimed to be the victim of domestic violence at the hands of her former partner.
The complaint alleged that the member's conduct was inappropriate and characterized the atmosphere in the hearing room as akin to a police interrogation. Specifically, the complaint alleged that the member was aggressive and used an intimidating tone, and that the member's comments and questions passed judgment on the refugee claimant – particularly as regards her private life. The complaint also made various ancillary allegations about the way the member conducted the hearing.
The Office of Integrity forwarded the complaint to the Chairperson for a decision on whether the allegations were within 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 scope and referred the complaint to an external investigator in order to facilitate a timelier resolution to the complaint.
The external investigator was a labour arbitrator, mediator and workplace investigator. She was formerly Vice-chair with the Human Rights Tribunal of Ontario.
Both parties were given the opportunity to discuss the matter with the investigator by telephone, to file written submissions and supplementary documentation, and to file replies to the submissions of the other party. The investigator reviewed the audio recording of the proceedings. A draft investigation report was prepared, and the parties were provided with an opportunity to comment on it. Neither party commented on the draft report. The investigator then prepared a final investigation report.
In the report, the investigator concluded that there was a breach of the Code of Conduct for Members of the IRB (Code of Conduct). The investigator made the following findings:
The Chairperson's Directives are an important interpretive tool to help understand what standards of conduct are appropriate in a given circumstance. For instance, in interpreting the obligations under the Code of Conduct, it is relevant that the Chairperson's Guideline 4 calls for sensitivity to Battered Woman Syndrome and to the circumstances of women who are victims of sexual violence.
The member's conduct during the hearing was troubling. While a certain degree of flexibility is needed in order for members to exercise their decision-making function, the conduct of the member in this case was inappropriate, even unbecoming, for a person responsible for determining refugee claims.
The member was at times abrupt towards the claimant, posing questions in an interrogative style without permitting the claimant to fully respond. Some of the member's questions and comments lacked sensitivity towards the claimant, seemed flippant, and suggested a lack of respect for the claimant, her life circumstances, and the fact that she was a victim of sexual violence.
Some of the member's comments were based on – and seemed to perpetuate and reinforce – myths and stereotypes regarding women victims of sexual violence. They demonstrated a fundamental misunderstanding of the dynamic surrounding Battered Woman Syndrome. Some comments implied that the claimant was partly responsible for the violence she had suffered, or that she was less credible because she had taken certain decisions or had not taken certain measures to counter or stop the abuse. In doing so, the comments caused or contributed to the refugee claimant's trauma.
As regards the ancillary allegations about the conduct of the hearing, members are responsible to ensure an orderly hearing. To this end, a member can require that a witness respond to a relevant question, can identify problems associated with a document, and can give the parties directions concerning documents. A member can also insist that a witness who requested interpretation services respond to a question in their mother tongue. The member's conduct in this regard did not lack respect or courtesy.
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 a breach of the Code of Conduct.
Both parties were informed about the resolution of the complaint through decision letters from the Chairperson.
As the member was no longer an IRB employee, remedial or disciplinary actions were not warranted under the circumstances.
The complaint was founded, and the file was closed.