2022-23 Annual report on member complaints

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Publication information

© His Majesty the King in Right of Canada, as represented by the Minister of Immigration, Refugees and Citizenship, 2023.       

Cat. No. MQ1-16E-PDF (Electronic PDF, English)       

ISSN: 2816-7929       

On this page

• Executive summary
• Complaints Process and the Code of Conduct
• Observations, findings and trends
• Outcomes: Complaints investigated and finalized
• Conclusions and looking forward
• Annex 1: Member complaints process

Executive summary

This is the fifth annual report on the member complaints process under the Immigration and Refugee Board of Canada’s (IRB) Procedures for Making a Complaint About a Member (Procedures), covering the period from April 1, 2022 to March 31, 2023.

During the period of this report, the IRB’s Office of the Ombudsperson had jurisdiction to receive and investigate complaints with respect to approximately 600 IRB decision-makers (members) who issued over 72,000 decisions across the four Divisions of the Board, which include: the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division. Of this caseload, 24 new complaints were received, with four additional complaints carried forward from the pervious year.

Information about complaints received and finalized in fiscal year 2022-23 is contained in this Report, along with detailed case summaries of the complaints finalized, which can be found on the IRB website at the following link - Case Summaries 2022-23.

As outlined in the Procedures, any individual may make a complaint about a member to the Office of the Ombudsperson. A complaint must be about the conduct of a member and not about what a member decides in a case. Once a complaint is received, the complaint is acknowledged and assessed as to whether it is within scope of the Procedures. At this stage, the decision to either screen out or investigate rests with the Chairperson. Complainants are notified that their complaint is acknowledged, screened into or out of the process, and, if the complaint is investigated, informed of the final decision by the Chairperson.

The 608 members of the IRB made just over 72​,500 decisions during this reporting period, which equates to one complaint per 3,023 decisions. This number indicates that the vast majority of members conduct themselves appropriately and to the high standard expected of them. At the same time, the low number of complaints received also suggests the continued need to promote awareness and build trust in the complaints process so that stakeholders have confidence that the process is fair and transparent.

The average time to process complaints through the main phases has decreased this reporting period. Service standards, established in April 2022 for the three main phases, strengthen the accountability, transparency and effectiveness of the member complaints process. Complainants know what they can expect and how long it will take when engaged in the process. Two of the service standards related to screening and the issuance of a final decision were exceeded; the third service standard relating to the acknowledgment of a complaint was met 90 percent of the time rather than 100 percent.

In keeping with past reporting periods, the majority of complaints (80 percent) are about members of the Refugee Protection Division, the largest IRB tribunal.

Complaints received do not automatically mean a breach of the Code of Conduct for Members of the Immigration and Refugee Board of Canada (the Code). Of the 22 complaints finalized, only four (4) were considered appropriate for investigation and one (1) led to a breach of the Code. The majority of complaints were considered out of scope of the Procedures as they were not about the conduct of members but rather about adjudicative matters and/or the members’ decisions. This again reinforces the need for continued promotion of the complaints process and the intent of the process which is focused on member conduct.

As in the past, the majority of complaints were about courtesy, respect and professionalism. One important trend observed, was that during this period, there were no complaints about gender-related claims. This is a marked decreased from 2019 and 2020 which each had six complaints of gender-related claims in addition to the two special reviews undertaken at the request of the Chairperson in 2020. This positive trend can, in part, be attributed to the IRB’s focus on these issues over the past four years, including establishing the Gender-Related Task Force (2020), mandatory training on gender-related claims, and the updated training, tools and guidance available to members in relation to the implementation of the renewed Chairperson’s Guideline 4: Gender Considerations in Proceedings Before the Immigration and Refugee Board in 2022.

Going forward, the IRB will continue to build on the results of this report. Additional measures to strengthen the accountability, transparency and effectiveness of its complaints process will be undertaken, including focused outreach with stakeholder groups to promote the Procedures and their scope and application. The IRB will continue its efforts to provide support and training to members as this is critical for them to fulfill their responsibilities and conduct themselves in accordance with the high standards expected of them under the Code of Conduct. Two important opportunities to note this year include the member training that will accompany the release of a renewed Guideline 3, Proceedings involving minors at the IRB, and Guideline 8, Vulnerable Persons, both of which reinforce the Board’s trauma-informed approach to adjudication and the high expectations of member conduct.

Complaints Process and the Code of Conduct

The Procedures outline the process of making a complaint about the conduct of a member of the IRB which is believed to be contrary to the Code. The Office of the Ombudsperson, as the centralized organization with jurisdiction over the complaints process, reports directly to the Chairperson and is independent of the four tribunals (Divisions) whose members are the subject of complaints.

Any individual may make a complaint about the conduct of a member of the IRB. The complaint must be in writing and sent to the general email inbox for the Office of the Ombudsperson (irb.ombudsoffice-bureauombuds.cisr@irb-cisr.gc.ca) or sent by mail. An updated complaint form is available to assist with this process, available on the IRB’s website.

Complaints cannot be about what a member decides in a case. When there is a concern about a member’s decision (such as their reasons for decision on the merits or concerns about a denial of procedural fairness or natural justice), 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. To allow otherwise could be viewed as fettering the independence of members.

Once a complaint is received, the Office of the Ombudsperson will send an acknowledgement that the complaint has been received and will outline the next steps in the process. See Annex 1 for a high-level process flow of the IRB’s Complaint Process.

Revisions to the Procedures became effective June 30, 2022, following consultations with internal and external stakeholders. The revisions focused on clarifying the scope of the procedures, better outlining the steps within the complaints process, and refining the criteria for deciding member complaints. Commentary sections were also added to provide further guidance and clarification of the complaints process.

Minor updates to the Code were made effective April 2022 which focused on clarifying the standards of conduct (sections 9 to 15).

Service standards for the processing of member complaints were established for complaints received effective April 1, 2022. The service standards support the commitment to provide a fair and transparent service that is timely and professional.

Observations, findings and trends

The number of complaints received over the past few years has remained fairly stable.

During the reporting period 24 new complaints were received. Four (4) complaints were carried forward from the previous year into this reporting period. Of these 28 complaints, 22 complaints were finalized before March 31, 2023. See Figure 1 below.

Six (6) complaints received were carried forward into the next reporting period: four (4) were on hold as the proceedings before the member were not yet finalized and two (2) complaints remained in the investigation phase.

The data indicates that the number of complaints received and finalized have remained relatively consistent over the past years – in the mid-20 range (other than 2020 when IRB operations were impacted as a result of COVID). The majority of complaints received continue to be from counsel followed by self-represented individuals. For this reporting period, about 80 percent of complaints received were from counsel and 17 percent from self-represented individuals.

Figure 1 – Complaints by reporting period

*In the Second Annual Report on Complaints, one complaint was mistakenly reported as having been received in 2019; however, the complaint was officially received in 2020.

^†2021-22 was a 15-month reporting period (January 1, 2021 to March 31, 2022) as reporting periods transitioned from calendar year to fiscal year.

Text format: Figure 1 – Complaints by reporting period

Year	2018	2019	2020	2021-22	2022-23
New complaints received	20	22	12	23	24
Continued from previous years	0	10	12*	5	4
Finalized during the year	10	20	19	24	22
Continued into next year	10	13	5	4	6

      

*In the Second Annual Report on Complaints, one complaint was mistakenly reported as having been received in 2019; however, the complaint was officially received in 2020.       

^†2021-22 was a 15-month reporting period (January 1, 2021 to March 31, 2022) as reporting periods transitioned from calendar year to fiscal year.      

Fewer complaints are being continued into the next reporting year.

As depicted in Figure 1, since 2020, fewer complaints have continued into the next year. This trend is an indication of the efforts taken to process complaints in a more timely manner. The complaints process now focuses on initiating the processing of complaints immediately following receipt. Those complaints which are continued to the next year are actively being managed; either they are on hold and being monitored for finalization (as the member is still seized with the file), or the complaint is in the screening or investigation phase.

The average number of days to finalize a complaint has decreased.

Previous annual reports reported on the average number of days to complete files. This data remained relatively consistent over the past years. For example, complaints finalized in 2021-22 were:

• acknowledged within an average of 11 calendar days,
• screened within an average of 52 calendar days, and
• finalized within an average of 209 calendar days.

In 2022-23, however, the average number of days to finalize complaints reduced to:

• acknowledged within an average of 3 calendar days,
• Screened within an average of 44 calendar days, and
• finalized within an average of 129 calendar days.

This positive trend can be attributed to the increased focus to strengthen the accountability, transparency and effectiveness of the member complaints process.

As part of these efforts, timeliness service standards for the main phases of the member complaints process became effective on April 1, 2022 (see Table 1). The service standards provide stakeholders with more information regarding what they can expect when engaged in the process and how long it will take.

The expectation is that these service standards are met under normal, day-to-day operations. The ability to meet these timelines may be impacted by the quality and completeness of the information that is received as well as other factors.

For this reporting period, complaints were:

• acknowledged within the established service standard, 90 percent of the time
• screened within the service standard, 90 percent of the time
• final decision letters sent within the service standard 100 percent of the time

The screening and final decision letter service standards were both exceeded. The acknowledgment letter service standard, however, was not met. Two of the 24 complaints received were acknowledged within 6 and 8 days rather than within 5 days.

The first year of service standard data demonstrates that the IRB has established an efficient workflow for the complaints process which is supported by consistently applied procedures and appropriate resources. The Office of the Ombudsperson will continue to process complaints as efficiently as possible and strive to ensure that all service standards are met and/or exceeded.

*This does not include the time that passes while a complaint is temporarily placed on-hold and not actively processed such as when the case related to the complaint is still before the member who is the subject of the complaint.

The number of complaints received on a per member basis remains very low.

For this reporting period, 24 new complaints were received out of the 72,552 decisions made by 608 members; or one complaint received per 3,023 decisions, which has remained relatively consistent over reporting periods. This highlights that the IRB receives relatively few complaints despite the tens of thousands of decisions made by the members.

A number of considerations follow from this data. The vast majority of members conduct themselves appropriately in undertaking their responsibilities as members. The low number of complaints received may also indicate a lack of awareness of the complaints process. Continued outreach with stakeholders over time may contribute to increased awareness of the process and perhaps to increased confidence in the transparency and objectivity of the process. This latter issue is often raised in relation to recourse mechanisms such as investigations. Building confidence and trust in a process is often difficult to establish unless individuals feel there is value in going through the process and have confidence that they will be treated fairly.

*15-month reporting period from January 1, 2021 to March 31, 2022

The majority of complaints received were about the conduct of an RPD member.

The RPD is the largest tribunal with the most members and decisions made at the IRB; the RPD was responsible for approximately 65 per cent of the 72,500 decisions during the reporting period and 77% of hearings. As a result, the division continues to receive the most complaints, with 83 percent of all complaints received.

Given the relatively low number of complaints received, it is difficult to draw any meaningful trends from this information. It is important to note, however, that a complaint received does not automatically lead to an investigation and a breach of the Code of Conduct.

Figure 2 – New complaints received by division

Text format: Figure 2: New complaints received by division

New complaints received by division

Year	Refugee Protection Division	Refugee Appeal Division	Immigration Division	Immigration Appeal Division
2018	14	0	6	0
2019	18	0	5	0
2020	10	0	1	1
2021-22	17	1	1	4
2022-23	20	2	1	1

      

More complaints were screened out this year than in previous years.

Twenty-two (22) complaints were finalized during the reporting period which included 4 complaints carried forward from the previous reporting year. During this reporting year, finalized complaints were either investigated or screened out. No complaints were finalized by other means, including informally resolved (although efforts were made to seek informal resolutions) or withdrawn, for example. Figure 3 shows complaints finalized by outcome.

During the reporting period:

• 18 complaints were screened out as they were not within scope of the Procedures.

This reporting period saw a high percentage of complaints screened out (82 percent for 2022-23 compared to 42 percent for 2021-22). Approximately 50 percent of the 18 complaints included allegations that were unclear or vague. In these instances, the complainant was contacted for more precision regarding the nature of the complaint, and, where warranted, the audio recordings of the relevant hearings were reviewed to determine whether the allegations in the complaint were within the scope of the Procedures. If screened out, these complaints were dismissed as they were outside the scope of the Procedures, meaning that they were not referred for investigation by the Chairperson.

This high percentage of screened out complaints in this reporting period (82 percent) reinforced the continuing need for outreach with stakeholders to increase, not only an awareness of the complaints process, but also the intent of the complaints process, which is a focus on member conduct, specifically as it relates to the standards of conduct found in sections 9 to 15 of the Code of Conduct.

Figure 3 - Complaints finalized by outcome

Text format: Figure 3 - Complaints finalized by outcome

Complaints by outcome

Year	Screened out	Withdrawn	Abandoned	Informally resolved	Referred to another process	Investigated -Breach	Investigated - No breach
2018	6	0	0	0	0	1	3
2019	9	2	3	0	0	3	3
2020	4	2	0	0	0	6	7
2021-22*	10	2	2	3	1	4	2
2022-23	18	0	0	0	0	1	3

       

Outcomes: Complaints investigated and finalized

During the reporting period:

• Four complaints were investigated by the Office of the Ombudsperson. One of the four investigations resulted in founded breaches of the Code, specifically sections 9, 10, 11 and 12.
• Regarding the type of allegations investigated, one investigation had allegations related to discrimination based on sexual orientation. The other three investigations were based on allegations of lack of courtesy, respect and professionalism.

In one (1) instance, the Chairperson found there was a breach of sections 9 and 10 of the Code of Conduct:

• The complaint involved counsel who appeared before a member for a refugee hearing. The complaint alleged that the member made comments that were rude and offensive to the complainant who is a member of the LGBTIQ2 community. It was also alleged that the member was rude and hostile towards counsel and the claimant. (See case summary 21-017 for more information on this complaint.)

In the other 3 instances, the Chairperson found there was no breach of the Code of Conduct:

• One complaint involved a CBSA Hearings Officer who was before the member for a refugee hearing. The complaint alleged the member behaved in an unacceptable and rude manner during the hearing by using a dry tone that lacked courtesy and professionalism. See case summary 21-022 for more information on this complaint.
• A second complaint involved counsel who was before the member for a refugee hearing. The complaint alleged the member was unprofessional, lacked integrity, was rude, and did not consider social or cultural differences during the hearing. See case summary 22-017 for more information on this complaint.
• A third complaint involved counsel who was before the member for a refugee hearing. The complaint alleged the member became unnecessarily agitated and criticized the complainant’s professionalism. See case summary 22-019 for more information on this complaint.

Summaries of all complaints finalized in 2022-23 are available on the IRB website at the following link: Summaries of decisions.

Observations, findings and trends

While the numbers of screened-in and investigated complaints is too small from which to draw any meaningful trends, of particular interest is the fact that complaints related to gender-based claims has decreased; none were received and/or finalized during this reporting period. In 2019 and 2020, six complaints in each year were related to gender-based claims. In 2020, there were also two special reviews of gender-based claims undertaken at the request of the Chairperson. Finally, in 2021, there was one complaint related to a gender-based claim.

The reduction of complaints based on gender-based claims can be seen as an indicator of a positive impact of the focused efforts undertaken by the IRB to address these files. Specific efforts have included establishing the Gender Related Task Force, ongoing mandatory training on gender violence, and updated training, tools and guidance for members, and renewed Chairperson’s guidelines on gender, and sexual orientation and gender identity and expression and sexual orientation.

Conclusion and looking forward

This annual report is the fifth report about member complaints and represents the first fiscal year reporting period, covering April 1, 2022 to March 31, 2023.

The member complaints process continues to be refined through updates to the Procedures and the Code of Conduct to further strengthen the accountability and transparency of the process. Complaints received (24) and finalized (22) this reporting year are in keeping with previous years. While there are tens of thousands of decisions made by IRB members, the number of complaints received remains relatively low. Most complaints are screened out of the process as they are not related to the conduct of the member but rather about adjudicative matters or the member’s decision. In total, four complaints led to an investigation with one complaint leading to a breach of the Code of Conduct.

Key observations stemming from this report include the continuing need to engage with IRB stakeholders to promote awareness of the complaints process, a better understanding of the scope of the process, and the need to provide clear information in plain language.

Efforts to strengthen the complaints process have yielded positive results. Complaints are addressed more efficiently, which is demonstrated by having met the established service standards and fewer complaints are carried forward into the next reporting period as a result of more active file management.

Notably, there has been a decrease in complaints associated with gender-related claims over the past years, which points to a positive outcome of the focus on this important issue. Establishing the Gender-Related Task Force, mandatory training as well as updated guidance, training and tools have most likely contributed to a decrease in complaints related to these cases.

Going forward, the IRB will continue to build on the results of this Report. Additional measures to strengthen the accountability, transparency and effectiveness of its complaints process will be undertaken, including focused outreach with stakeholder groups to promote the Procedures, their scope and their application. The IRB will continue its efforts to provide support and training to members which is critical for them to fulfill their responsibilities and conduct themselves in accordance with the high standards expected of them in keeping with the Code of Conduct. Two important opportunities to note this year include the member training that will accompany the release of a renewed Guideline 3, Proceedings involving minors at the IRB, and Guideline 8, Vulnerable Persons, both of which will reinforce the Board’s trauma-informed approach to adjudication and the high expectations of member conduct.

Annex 1 - Member complaints p​rocess

Text format: Annex 1 - Member Complaints Process

1. Acknowledgment      

   A written complaint is received. The Office of the Ombudsperson sends an acknowledgment of receipt to the complainant.      

2. Screening      

   The Ombudsperson reviews the allegations in the complaint and makes a recommendation 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 will decide to:      

   1. Refer some, or all, of the allegations for investigation to the Ombudsperson or an external investigator if the allegations are about the conduct of the member
   2. Dismiss some, or all, of the allegations if the allegations are not about the conduct of a member or are frivolous, vexatious, or otherwise an abuse of process
   3. Refer some, or all, of the allegations to a Deputy Chairperson for action
   4. Take any other action deemed required in the circumstances

   The Chairperson's decision letter, which includes the reasons for the decision, is sent to the complainant, the member, and member management.*      

   * The member is not notified of the complaint until after the file related to the complaint is no longer before the member.      

3. Investigation      

   The parties are given an opportunity to provide submissions before and after the investigator prepares a draft investigation report which is based on available evidence and contains preliminary findings of fact and analysis.      

   The report is then finalized and submitted to the Chairperson.      

4. Final decision      

   The Chairperson reviews the investigation report and decides whether any allegations are founded and whether there was a breach of the Code of Conduct.      

   The parties and member management are informed of the Chairperson's decision. Further actions are taken, as appropriate. The file is closed.      

Principles that are applied in the process:      

When a complaint is referred for investigation, the process will ensure that:      

• the complaint is dealt with as quickly as fairness and thoroughness permit
• it is procedurally fair to the parties - i.e., the personwho made the complaint and the member who is the subject of the complaint
• the identity of parties will be protected, to the extent possible, and as outlined in the Privacy Act and the Access to Information Act
• adjudicative independence of IRB members is respected while members are accountable for their conduct

Service standards for processing member complaints:      

• 5 calendar days to acknowledge receipt of complaint
• 60 calendar days for the screening of the complaint^†
• 170 calendar days for the final decision^†

^†This service standard does not include the time that passes if the case related to the complaint is still before the member who is the subject of the complaint.      

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