A review of the complaint found that the allegations were not within the jurisdiction of the Member complaints process. The complaint was dismissed, and the file was closed.
The Complainant was counsel for a refugee claimant whose case was heard by a Member of the Refugee Protection Division. The Complainant alleged that the Member continuously interrupted the complainant while they were trying to advocate for their client, and asked the claimant to testify about the specifics of the torture that they went through in their home country. The Complainant further alleged that the Member asked the Complainant if they knew that their client would take medication during the hearing. The Complainant felt this question indicated bias, as it suggested that the Complainant pre-arranged for their client to take this medication.
The Office of the Ombudsperson reviewed the complaint and found that the allegations were regarding adjudicative discretion, not conduct. The decision to interrupt is part of hearing management, and hearing management is part of Member decision-making. A Member's role during a hearing is inquisitorial in nature and some flexibility is necessary to accomplish their adjudicative function. When possible, Members have the discretion to avoid sensitive topics, however this discretion is part of their adjudicative decision-making. The allegation of bias relates to the Member's adjudicative discretion as a decision-maker. Part of adjudicative discretion during a hearing is deciding which questions to ask, and this includes decisions about what questions to ask counsel.
The Ombudsperson therefore recommended to the Chairperson that the allegations be dismissed as they do not fall within the scope of the Procedures for Making a Complaint about a Member (the Procedures). The Chairperson agreed with the recommendation.