Report to the House of Commons Standing Committee on Citizenship and Immigration (CIMM)

Status of Complaints against IRB Members Brought in the First Year under the New Procedures

Summary

The Immigration and Refugee Board of Canada (IRB) launched an exercise in 2017 to strengthen its process for managing complaints made about the conduct of its decision- makers.
The new Procedures for Making a Complaint About a Member(Procedures) came into effect on December 21, 2017. They are written in plain language and are published prominently on the IRB website. The obligations and expectations of IRB members are outlined in the Code of Conduct for Members of the IRB (Code of Conduct). The Code of Conduct and the new Procedures apply to both public servant members, as well as those appointed by Order in Council.
The IRB complaint process is among several issues addressed by the Standing Committee on Citizenship and Immigration (CIMM) in its 20th Report, entitled “Responding to Public Complaints: A Review of the Appointment, Training and Complaint Processes of the Immigration and Refugee Board”, tabled in the House of Commons on September 17, 2018. In its report, the CIMM makes the following recommendation:

Recommendation 8: Reviewing and reporting back on the complaints process at the Immigration and Refugee Board of Canada
That the Immigration and Refugee Board of Canada report back to this Committee in February 2019 with a comprehensive report on the status of complaints against members brought under the current complaints process, and conduct a comprehensive review of the current complaints, with a particular emphasis on the need for independence in the complaints investigation and adjudication process, within three years.

The Government of Canada supported this recommendation and the IRB committed to submit a written report to the CIMM on the status and/or disposition of all complaints about decision-makers brought under the new complaint process. The IRB also committed to undertake a comprehensive, formal review of the new Procedures by 2021-2022.

This report is intended to satisfy the commitment to report back to CIMM after the new Procedures have been in effect for a one year period. The IRB will ensure that the comprehensive three-year review assesses the timeliness, effectiveness, fairness, objectivity and independence of the new complaint Procedures.

Context

Prior to the implementation of the new Procedures, concerns about member conduct were dealt with under the previous Protocol Addressing Member Conduct Issues (the Protocol). There were several issues with the Protocol, including:

• The Protocol was difficult to understand;
• Information about making a complaint could not easily be found on the IRB website;
• A complaint about a member was dealt with by one of the members’ managers; as a result, there was a lack of consistency in treatment of complaints across the four Divisions and in the three regions;
• There was no clear process in place to ensure that complainants were kept informed of the progress and outcome of their complaints; and
• A lack of consistent and complete information on complaints led to incomplete reporting and a resulting lack of transparency.

IRB stakeholders had shared these and other concerns with the IRB through both formal and informal channels over time. It is fair to say that some in the counsel community and other interested parties had lost faith in the robustness and transparency of the IRB complaint process.

It is in this context that the IRB undertook an initiative in 2017 to review and strengthen the process for making a complaint about a member’s conduct.

Findings

The IRB drafted the new Procedures reflecting the following:

• The Procedures were drafted in plain language;
• They indicated that the IRB’s Office of Integrity – an ombuds-type body within the Board, completely independent of the Divisions, reporting directly to the Chairperson – would be responsible for managing and investigating complaints on behalf of the Chairperson;
• Steps in the handling of a complaint were clearly laid out, with parties kept informed of progress throughout the process;
• Overall responsibility and accountability for the complaints process and resulting decisions rests with the Chairperson;
• More detailed annual reports on complaints made and outcomes will be published on the IRB website.

The IRB shared the draft new Procedures with key stakeholder organizations^{Footnote 1} for feedback and comments.

Those stakeholders provided extensive submissions, and many of their comments were incorporated into the new procedures. Notably, the IRB explicitly addressed their concerns about absence of fulsome public reporting, lack of easy access to complaint information on the IRB website, difficulty in understanding the old Protocol, investigation of complaints by members’ own managers, and not taking into account prior misconduct by a member.

In direct response to the stakeholder concerns outlined above:

• The IRB posted information on the new Procedures on its website homepage. Links to a complaint form, the Procedures, and the published summary reports are now easily accessible.
• The IRB is also now publishing summaries of individual complaints and their disposition as complaints are finalized. This real time reporting of the outcome of complaints is a significant improvement over the limited information previously published on an annual basis.
• The Director of the Office of Integrity is a direct report to the Chairperson, operates independently of the four Divisions and the members’ managers, and is mandated to investigate complaints in a manner which is impartial and fair to both the complainant and the member who is the subject of the complaint.
• The new Procedures explicitly state at section 6.3 that incidents of prior misconduct by a member will be taken into account by the Chairperson.

With complaints administered centrally by the Office of Integrity, the IRB is in a position to identify trends or recurring issues in a timely fashion such that any intervention, additional training or direction required can be actioned quickly. An early trend of several complaints filed regarding decisions and other adjudicative issues was identified almost immediately as an issue (see next section – Code of Conduct). Fulsome annual reporting will provide an overview of the nature of complaints received, steps taken and disposition/outcomes.
The Chairperson is responsible and accountable for the member complaint process. The Chairperson makes all decisions on whether or not a complaint falls within the scope of the Procedures and will be investigated. The Office of Integrity investigates the complaint, and provides an investigation report with findings and recommendations to the Chairperson for consideration. The Chairperson makes a decision on whether or not there was a breach of the Code of Conduct on the part of the member.

The new Procedures also allow for the Chairperson to refer a complaint to an external investigator in exceptional cases. To date, the Chairperson has referred one complaint for investigation by an external investigator.

Code of Conduct

The most significant issue that became readily apparent when the new Procedures came into effect was confusion around the sections of the Code of Conduct that can be the subject of a complaint. Potential complainants saw perceived breaches of any section of the Code as the basis for a complaint. Rather, section 3.3 of the Procedures states that “a complaint must be about the conduct of a member which is believed to be contrary to the Code of Conduct” (emphasis added).

Counsel and claimants have submitted complaints which allege bias and lack of procedural fairness. These types of allegations are generally not accepted for investigation because the complaints process is only applicable in cases of member misconduct. The complaint procedure is meant to address the conduct of the member, and whether or not that conduct goes against the Code of Conduct for members of the IRB. In other words, it is about how members behave when they are doing their work.

Complaints cannot be about what a member decides in a case. This is because the law requires that when there is a concern about a member’s decision, the proper place for that to be dealt with is through an appeal to the Refugee Appeal Division (RAD), the Immigration Appeal Division (IAD) or the Federal Court (as applicable). The IRB’s complaint procedure cannot be used to deal with matters that should be decided by these bodies.

Therefore, in 2018, the Office of Integrity recommended that the Code be amended to clearly identify sections which relate to the conduct of members, as opposed to those which cover other obligations. The seven sections of the Code related to conduct will be regrouped under the heading “Conduct of Members” in order to clarify the types of complaints that may be accepted for investigation. This proposed change to the Code was tabled and discussed at a consultative meeting with IRB stakeholders in December 2018 and, with stakeholder endorsement, will be implemented on April 1st, 2019.

Current status

During the period of December 21, 2017 to December 20, 2018 the Office of Integrity received 20 complaints under the new Procedures. Only ten (10) were screened into the process; during that period, the four divisions of the IRB held over 32,000 in-person hearings. It is clear that the vast majority of members conduct themselves in an appropriate manner in the hearing room. More detail on the individual complaints can be found in Annex A.

General Information

• Three of the 20 complaints were filed by self-represented individuals; the other seventeen by representatives (lawyers, paralegals, representatives, etc.).
• Fourteen of the twenty complaints related to Refugee Protection Division (RPD) matters, and six regarding the Immigration Division (ID). No complaints were received regarding the Immigration Appeal Division or the Refugee Appeal Division.
• The Office of Integrity attempted to informally resolve three of the complaints under section 5.3 of the Procedures, without success.
• With respect to the 10 complaints referred for investigation to date, the majority of allegations relate to issues of members allegedly treating parties or their representatives with a lack of respect or sensitivity, or displaying rudeness or improperly silencing the complainant.
• All but one complaint that was referred for investigation related to conduct during a hearing. In those instances, the investigative process generally relied on:
• The narrative of the allegations in the complaint submitted;
• The response to the allegations submitted by the member;
• The hearing file and related documentation;
• The audio recording of the proceedings; and
• The parties’ responses to the draft investigation report^{Footnote 2}.
• In one instance, the alleged incident leading to the complaint took place outside the hearing room, without the benefit of an audio recording. In such circumstances, witnesses must be interviewed as part of the investigative process.

Status

Of the 20 complaints received:

• Six were dismissed at the outset as they fell outside of the scope of the Procedures (about the decision, allegations of bias, lack of natural justice, etc.);
• Two are in abeyance pending the cases being finalized before the presiding member;
• Two are on hold, with the complainants considering their options and deciding whether or not they choose to proceed;
• Six are currently ready for, or are under investigation (five by the Office of Integrity, one by a third party investigator);
• Three final decisions have been issued by the Chairperson following an investigation that found there was no breach of the Code of Conduct; and
• One final decision has been issued that found there was a breach of the Code by the member.

On average:

• Complaints were acknowledged within 5 working days;
• Obtaining the members’ response to the allegations, conducting the investigation, drafting the investigation report and sending it to the parties for comment took 3 months; and
• After receipt of comments from the parties, the report was finalized and a formal decision by the Chairperson followed one month thereafter.

For complaints that were screened out as they fell outside the scope of the Procedures, a decision to that effect was issued by the Chairperson on average within a period of two weeks.

Conclusion

IRB decision-makers have a difficult job. They preside over hearings that are often sensitive, emotionally charged – and the outcome can be life-changing for the individual who is the subject of the proceeding. Given this context, there can be difficult exchanges between parties who appear at hearings and the presiding member.
Members are subject to a Code of Conduct and they must remain cognizant of how their conduct may be perceived, particularly when dealing with claimants and other participants at hearings who may be living in extremely difficult circumstances. Refugee claimants and other persons appearing before the Board can and should expect to be treated fairly, with dignity and respect.

The new Procedures are intended to reflect a strengthened, more transparent complaint process where members are held accountable for their conduct, while ensuring they are accorded procedural fairness throughout the investigation process. The IRB is committed to ensuring that stakeholders, the CIMM and other interested parties have full confidence that a rigorous complaints investigation process is in place and that members are held accountable for their conduct.

To that end, the Chairperson remains committed to carrying out a comprehensive, formal evaluation of the effectiveness of the complaints process within three years of its implementation. The IRB will ensure that this comprehensive three-year review assesses the timeliness, effectiveness, fairness and objectivity of the new complaint Procedures. To the extent possible, it will endeavor to determine the level of independence and objectivity of the process with the Office of Integrity conducting investigations and making recommendations to the Chairperson.

The IRB will continue to make ongoing improvements to the process as issues arise and opportunities present themselves. Recommendations flowing from the evaluation will inform future revisions to the Procedures as well. The IRB, through its consultative committee, has already begun the process of keeping stakeholders apprised of the new process, proposed changes or improvements, and has already taken into account feedback on the Code and the Procedures from that body.

The IRB is committed to an effective and efficient process for dealing with complaints about the conduct of its members.

Annex A: Status of Complaints as at December 21, 2018