Protocol Addressing Member Conduct Issues

September 14, 2009

A.  CONTEXT

1.  The Protocol establishes the process that the Immigration and Refugee Board of Canada (IRB) follows in dealing with concerns, both internal and external, about the conduct of members involving an alleged breach of the Code of Conduct for Members of the Immigration and Refugee Board of Canada (Code of Conduct). The provisions in the Protocol are distinct from the remedial and disciplinary measures set out in sections 176 to 186 of the Immigration and Refugee Protection Act (IRPA), applicable to members appointed by the Governor in Council (GIC). The Protocol in no way prejudices any right the GIC may have to discipline or remove a member from office under IRPA.

2.  The Protocol is based on the premise that a public institution such as the IRB will be strengthened by an accessible, transparent, expeditious, and effective complaint process. Such a process is necessary to maintain public confidence and trust in the integrity, objectivity and impartiality of the IRB and, at the same time, ensure fairness to members, who may require protection against complaints that are without substance.

3.  The IRB is cognisant of the high standards of conduct required of public officials such as IRB members who have been entrusted with the responsibility for making quasi-judicial decisions that profoundly affect the lives of individuals. In its ongoing efforts to establish and maintain the high level of professionalism that is expected of members, the IRB established a Code of Conduct for its GIC members in January 1993, which was replaced by an updated, more comprehensive Code on June 1, 2008. The new Code reflects the IRB’s ongoing integration initiatives and establishes the standards of conduct that govern the professional and ethical responsibilities of all IRB members as decision-makers of a quasi-judicial administrative tribunal.

4.  Members are accountable to the Chairperson for their compliance with the Code of Conduct. As such, where an inquiry into a complaint is conducted, the Chairperson has the authority to dispose of the complaint and determine if any remedial measures are required.

5.  It is important that concerns and complaints are dealt with as quickly as fairness and thoroughness will permit. Both persons expressing concern or making a complaint and members will be informed of progress at every stage of the process. Timelines will be established for each stage as well as directives for ensuring prompt notice to them. In order to maintain flexibility, these matters will be established administratively, on a case-by-case basis.

6.  The Protocol contemplates two stages — the Informal Resolution of Concerns and the Inquiry into Complaints. The rules of natural justice and the general principle of fairness apply to both of these stages. In particular, it is expected that the person designated to conduct inquiries at the complaint stage will be thorough and fair, both to the complainant and to the member who is the subject of the complaint by giving the member a full opportunity to respond. Provided that the principle of fairness is respected, wide latitude and flexibility are permissible in conducting inquiries. Legal principles in addition to fairness are also applicable to inquiries. For example, the standard of proof for a finding of misconduct is that of a balance of probabilities based on clear and cogent evidence.

B.  DEFINITIONS

7.  Division Head: Means the Deputy Chairperson for each Division comprised of GIC members, or the Director General of the Immigration Division.

8.  Person designated: Refers to the IRB official or outside legal counsel or advisor designated by the Division Head to conduct an inquiry at the complaint stage.

9.  Member Manager: For the purpose of this Protocol, the Member Manager means the Assistant Deputy Chairperson for each Division comprised of GIC members or the Director of the Immigration Division managing the member. It does not mean a coordinating member for a Division.

C.  APPLICABILITY OF THE PROTOCOL

10.  This Protocol comes into effect on September 14, 2009, and replaces the previous Protocol Addressing Member Conduct Issues and Public Complaints Process.

11.  The Protocol applies to all full-time and part-time members of the IRB, whether they are public servants appointed under the Public Service Employment Act or GIC appointees. However, this Protocol does not limit any rights or obligations that members may have or are subject to under any applicable legislation, guideline, code, policy or other instrument, and including, in the case of public servant members, any rights or obligations under a collective agreement.

12.  The Protocol ceases to apply to GIC members once their mandate expires and to public servant members once they are no longer employed as decision-makers¹.

13.  The Protocol applies only to concerns about the conduct of members in their role as decision-makers. However, it does not apply to the adjudicative decisions or exercise of discretion by members in the course of fulfilling their duties and functions. Such errors or perceived errors are properly the subject of an application for judicial review. The Protocol also does not apply to concerns about management, administrative policies, or practices of the Board.

14.  Where a concern is expressed about the conduct of a member, it is referred in the first instance to the member manager. Where a concern is expressed about the conduct of a member manager, it is referred in the first instance to the Division Head. Where a concern is expressed about the conduct of a Division Head, it is referred to the Chairperson who deals with it directly. The member manager or Division Head who is the subject of a concern is treated as a member under the Protocol.

D.  CONCERNS ARISING DURING PROCEEDINGS

15.  A concern about the conduct of a member may arise during the course of a proceeding before that member. The alleged conduct at issue may occur either inside or outside the hearing room.

16.  If the concern relates to an allegation of bias, the proper course is for the issue to be raised at the hearing itself, on an application for the recusal of the member. If such an application has not been made or has been made and rejected, the expression of a concern under this Protocol should not require the member to withdraw from the proceeding. The Protocol should not be allowed to become a vehicle for removing members from panels.

17.  In certain circumstances, it may be necessary to deal with the issue of conduct immediately, even though proceedings before the member have not been completed. However, the member manager should ordinarily postpone dealing with the matter and informing the member until the member has completed the case and a decision in the proceeding has been rendered.  In such a situation the person who expressed a concern will be so advised by the member manager.

18.  Whether or not there has been a motion for recusal, in some cases it may be appropriate for the member manager to inform the member of the expression of concern and the decision to postpone taking any action². For example, this approach may be necessary to permit the member to recollect events while they are still fresh. Moreover, if the conduct in question was inappropriate and is ongoing, notice to the member could result in an improvement in the member's conduct.

E.  Informal Resolution of Concerns

19.  The intent of the Protocol is to deal with expressions of concern about the conduct of members informally whenever possible. Informal resolution is often more expeditious, less costly, and more mutually satisfactory.

20.  In addressing a concern, the member manager may meet with the person expressing concern and the member, make other informal inquiries, and attempt to resolve the concern informally. The member manager may also resolve such a concern unilaterally by concluding that it is without substance or not serious enough to warrant further consideration. Concerns that relate only to the correctness of a member's decision, for example, may be found to be without substance on the basis that the Protocol does not apply to them. Where a concern is dismissed, the person expressing concern may request the Division Head to review the decision of the member manager.

21.  Where the member manager is of the view that the circumstances are such that it may not be appropriate for the member manager to deal with a particular concern about the conduct of a member, the member manager shall refer the concern to the Division Head. Where the Division Head agrees with the member manager’s view, the Division Head shall assign another member manager to deal with that concern under the Protocol.

22.  Where the Division Head is of the view that the circumstances are such that it may not be appropriate for the Division Head to deal with a particular concern about the conduct of a member manager, the Division Head shall refer the concern to the Chairperson. Where the Chairperson agrees with the Division Head’s view, the Chairperson shall assign another Division Head to deal with that concern under the Protocol.

F.  Provisions

23.

1. Every expression of concern about the conduct of a member shall be referred in writing at the first reasonable opportunity to the member manager, and shall include a detailed description of the concern, together with supporting information.
2. Where the member manager decides that further action is required and is also of the view that the conduct at issue may threaten the integrity of the IRB³, the member manager shall forward the expression of concern to the Chairperson. The Chairperson shall review the expression of concern and decide whether or not the concern shall be dealt with under the Protocol and, if not, the Chairperson shall determine the appropriate steps to be followed in order to inquire into the matter, based on the particular circumstances.
3. In all other cases where the member manager decides that further action is required, the member manager shall send a copy of the complaint to the member at the first reasonable opportunity and follow the remaining provisions set out in the Protocol.
4. Paragraph (a) does not apply to concerns resolved by members through informal dialogue among themselves.

24.

1. Where the member manager decides that further action is required, the member manager may gather, or arrange to have gathered, further information.

   To this end, the member manager may conduct informal inquiries and may meet with the person expressing concern and the member, individually and/or together.

2. The member manager shall provide the person expressing concern with a copy of this Protocol and the Code of Conduct.

25.

1. The member manager may dismiss the concern by writing to the person expressing concern and explaining why the Protocol does not apply or why the concern is without substance or not serious enough to warrant further consideration.
2. Where the concern is dismissed under paragraph (a), the person expressing concern may write to the Division Head to request that the Division Head review the member manager’s decision. The Division Head may confirm the decision to dismiss the concern or require re-consideration by the member manager with directions.

26.  Where the person expressing concern and the member are satisfied with an informal resolution of the concern, the member manager shall document, and may write to both of them, confirming the informal resolution.

27.  Where the member manager decides, at any time, that the matter cannot or should not be resolved informally, the member manager shall advise the person expressing concern and the member accordingly in writing.

G.  Inquiry into complaints

28.  If the member manager has not dismissed the concern or achieved an informal resolution acceptable to the person expressing concern and the member, the person expressing concern may file a written "complaint" with the Division Head. At this stage, the person expressing concern becomes a complainant and the process becomes a formal inquiry into the complaint.

29.  Inquiries are to be conducted by a person designated by the Division Head. The Division Head may ask that person to conduct further inquiries and to report back in writing.

30.  The Division Head will, in turn, make a formal recommendation to the Chairperson as to the final disposition of the complaint. The Chairperson will then write to the complainant and the member advising them of the decision of the Chairperson, including whether any remedial measures are required.

H.  Provisions

31.

1. Where a member manager has decided that no further action is required or where a matter of concern has not been dismissed or resolved informally, the person expressing concern may complain by writing to the Division Head and setting out the details of the complaint.
2. The person expressing concern may also make a complaint during or without any attempts at informal resolution where the member manager considers that doing so is in the public interest.
3. Where the person expressing concern declines to make a complaint, the member manager may, in exceptional circumstances, summarise the concern in writing and submit it to the Division Head as a complaint.
4. The Division Head shall send a copy of every complaint to the member and the member manager at the first reasonable opportunity to allow them to provide a written response to the Division Head if they wish to do so. The Division Head shall disclose the written response, if any, to the complainant.

32.

1. Upon receiving the member's written response, if any, the Division Head may:
   1. close the complaint file by writing to the complainant, explaining why the Protocol does not apply or why the complaint is without substance or not serious enough to warrant further consideration;
   2. close the complaint file by writing to the complainant advising that the member has acknowledged inappropriate conduct and expressed regret and explaining why further consideration of the complaint is not warranted;
   3. designate a person to conduct further inquiries into the complaint and advise the complainant, the member, and the member manager in writing; or
   4. make a report directly to the Chairperson, in accordance with section 33 below, where there is no need to conduct further inquiries.
2. The person designated to conduct further inquiries must put the substance of any allegations and evidence against the member to the member and the member's response must be included in the report to the Division Head.
3. The person designated to conduct further inquiries shall report in writing to the Division Head with findings and recommendations upon completion of such inquiries.
4. Upon receiving the report, the Division Head may direct that further inquiries be conducted with directions.

33.  Following a review of the report, the Division Head shall report in writing to the Chairperson with recommendations as to the disposition of the complaint, including any remedial measures.

34.

1. Upon receiving the report and recommendations of the Division Head, the Chairperson may:
   1. determine that the complaint has not been established and close the complaint file; or
   2. determine that the complaint has been established, the extent to which it has been established, and the remedial measures, if any, that are required.
2. The Chairperson shall explain in writing to the complainant, the member, and the Division Head, the decision made under paragraph (a).
3. The decision of the Chairperson is final and is not subject to review or appeal within the IRB.

35.  The IRB shall make available publicly, and on an annual basis, an account of the disposition of complaints over the previous year.

Endnotes

1. The Conflict of Interest Act contains post-employment provisions which apply following the expiry of the member’s term of office. The Conflict of Interest and Ethics Commissioner may conduct examinations into alleged breaches of the Act for up to 10 years from the date of the alleged breach or 5 years from the date the Commissioner becomes aware of the matter. The Values and Ethics Code for the Public Service applies to a member of the Immigration Division following the end of the member’s employment as a public servant.
2. The member manager would also inform the other party where applicable.
3. For example, section 11 of the Code of Conduct encourages members to bring to the Chairperson’s attention as soon as practicable breaches of the Code of Conduct on the part of other members, if such conduct may threaten the integrity of the Board.