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Effective Date: October 15, 1999 PROTOCOL ADDRESSING MEMBER CONDUCT ISSUESMISSIONThe Immigration and Refugee Board is an independent tribunal established by the Parliament of Canada. Our mission, on behalf of Canadians, is to make well-reasoned decisions on immigration and refugee matters,efficiently, fairly, and in accordance with the law. VISIONWe will excel in everything we do and will deal simply, quickly and fairly with everyone. Through innovation, we will be a leading edge administrative tribunal and a creative partner in building the future of the Canadian immigration system VALUES
CONTEXTThis Protocol Addressing Member Conduct Issues (the "Protocol") is based on the premise that a public institution such as the Immigration and Refugee Board (the "IRB") will be strengthened by an accessible, expeditious, and effective public complaint process. Such a process is necessary to maintain public confidence in the IRB. At the same time, the process must ensure fairness to members, who may require protection against irresponsible complaints. The process must respect their personal rights and dignity as well as ensure that trivial or vexatious complaints are dealt with appropriately. 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 members in January 1993. The Code operates in tandem with its Workplace Harassment Policy. In January 1995, the IRB established a Public Complaints Process in relation to the conduct of members and complaints have been effectively dealt with under that Process. In accordance with the IRB's commitment to continuous improvement in its policies, practices, and procedures, this Protocol draws upon the experience gained under the Public Complaints Process and replaces it with an enhanced, less complicated, and more effective approach that reflects the value that the IRB places on the fairness of its processes. An attempt has been made to express the Provisions in this Protocol in plain language and to simplify procedural requirements. The Protocol contemplates two stages — the Informal Resolution of Concerns and the Inquiry into Complaints. The general principle of fairness applies to both of these stages. In particular, it is expected that legal counsel or other qualified advisers conducting 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. The Need for a ProtocolMost concerns that are raised about the conduct of members of the IRB are not so serious as to warrant formal sanctions particularly that of removing the member from office which is the ultimate sanction. Sections 63.1 and 63.2 of the Immigration Act establish the foundation for dealing with the conduct of members; however, these provisions are rarely invoked. This Protocol establishes the process that the IRB follows in dealing with concerns about the conduct of members which are not sufficiently serious to trigger the application of section 63 of the Immigration Act. However, there is a need for a process to identify such serious cases should they arise and to deal with less serious conduct which tends to arise more frequently. The need for a process raises the following two questions. How is a determination to be made that a judicial inquiry should be recommended? And where the conduct is inappropriate but not serious enough to warrant a judicial inquiry, how is it to be addressed? This Protocol responds to both of these questions. It is important that concerns and complaints are dealt with as quickly as fairness and thoroughness will permit. Both complainants and members will be informed of progress at every stage of the process. Timeliness will be established for each stage as well as directives for ensuring prompt notice to complainants and members. In order to maintain flexibility, these matters will be established administratively. Applicability of the ProtocolThis Protocol applies to members of the Immigration Appeal Division and the Convention Refugee Determination Division of the IRB. Once a member's term of office expires, the IRB loses jurisdiction to deal with the member, and the Protocol no longer applies to the former member1. This Protocol does not apply to complaints against public servants. Complaints about Public servants, who are subject to other conduct related instruments, fall under the ultimate jurisdiction of the Executive Director. The Protocol applies only to concerns about the conduct of specific members. It does not apply to the adjudicative decisions or exercise of discretion by members in the course of fulfilling their duties and functions. Perceived error by quasi-judicial decision-makers is subject only to judicial review unless it transcends mere error and relates to one of the grounds enumerated in section 63.2(2) of the Immigration Act. The Protocol does not apply to concerns about management, administrative policies, or practices of the Board. Such matters do not raise issues of conduct, although their legality may, in some circumstances, be challenged. The better avenue to express concerns of this nature is through consultations and discussions with members' managers in the region concerned. Where a concern is expressed about the conduct of an Assistant Deputy Chairperson ("ADC"), it is referred in the first instance to the Deputy Chairperson ("DC"). The ADC who is the subject of the concern is treated as a member under the Protocol. Where a concern is expressed about the conduct of a DC, it is referred to the Chairperson who deals with it directly. Concerns Arising During HearingsA concern about the conduct of a member may arise during the course of a hearing before that member. If the concern relates to legal bias, the proper course would be for the issue to be raised at the hearing itself, on an application for the member to recuse. 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 hearing. The Protocol should not be allowed to become a vehicle for removing members from panels. Ordinarily, in such circumstances, the ADC should postpone dealing with the matter until the hearing has been completed and a decision rendered. Where there is no motion for recusal, the prudent course may often be for the participant who has raised the concern with the ADC to raise it again "on the record" at the hearing. In any event, the ADC would normally inform the member of the expression of concern and the decision to postpone taking any action.2 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 (e.g. tardiness in commencing the resumption of the hearing in a lengthy case), notice to the member could result in an improvement in the member's conduct. In extraordinary circumstances, it may be necessary to deal with the issue of conduct immediately, even though proceedings before the member have not been completed. Informal Resolution of ConcernsThe 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. Concerns raised by non-members about the conduct of members are addressed in the first instance by the responsible ADC. In addressing a concern, the ADC may meet with the person expressing concern and the member, make other informal inquiries, and attempt to resolve the concern informally. The ADC 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 on such a basis, the person expressing concern may request the DC to review the ADC's decision. It should be noted, in particular, that where one member has a concern about the conduct of another, the members' Code of Conduct imposes on that member an obligation to express his or her concern to the other member. The Code also creates an obligation on the member to report his or her concern to the ADC. This Protocol establishes that where concerns about conduct are not resolved directly between members, they will also be addressed in the first instance by the appropriate ADC. Inquiry into ComplaintsIf the ADC 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 DC. At this stage, the person expressing concern becomes a complainant and the process becomes a formal inquiry into the complaint. The Provisions establish that inquiries are to be conducted by legal counsel or advisers. It is contemplated that often legal counsel from the Head Office of the IRB will conduct such inquiries. Outside legal counsel or an adviser may also be appointed at the discretion of the DC. The DC may ask legal counsel or the adviser to conduct further inquiries and to report back in writing. The DC 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 were required. The Protocol comes into effect on October 15, 1999. It applies to all concerns expressed or complaints received on or after that date. It also applies to all complaints received before that date and for which the IRB has not sent an acknowledgement of receipt. The Public Complaints Process continues to apply to complaints received before October 15, 1999 and currently being examined. PROVISIONSInformal Resolution of Concerns1. a) Every expression of concern about the conduct of a member shall be referred at the first reasonable opportunity to the ADC responsible for that member.3 b) Where an identified person has expressed the concern and the ADC decides that further action is required, the ADC shall fully inform the member at the first reasonable opportunity. c) Subsection (a) does not apply to concerns resolved by members and/or Co-ordinating members through informal dialogue among themselves, subject to the obligations of members under the members' Code of Conduct. 2. a) Where the ADC decides that further action is required, the ADC may gather, or arrange to have gathered, information; the ADC may conduct informal inquiries and may meet with the person expressing concern and the member, individually and/or together. b) The ADC shall provide the person expressing concern with a copy
of this Protocol. b) Where the concern is dismissed under subsection (a), the person
expressing concern may write to the DC to request that the DC review
the ADC's decision. The DC may confirm the decision to dismiss
the concern or require re-consideration by the ADC with directions.
5. Where the ADC decides, at any time, that the matter cannot or should not be resolved informally, the ADC shall advise the person expressing concern and the member accordingly in writing. Inquiry into Complaints6. a) Where an ADC 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 responsible DC and setting out the details of the complaint. b) The person expressing concern may also make a complaint during or without any attempts at informal resolution where the ADC considers a complaint to be in the public interest. c) Where the person expressing concern declines to make a complaint, the ADC may, in exceptional circumstances, summarise the concern in writing and submit it to the DC as a complaint. d) The DC shall send a copy of every complaint to the member and the
ADC responsible for the member at the first reasonable opportunity for
any written response they may want to provide to the DC. The DC
shall disclose the written response, if any, to the complainant. i) close the complaint file by writing to the complainant, explaining why the complaint is without substance or not serious enough to warrant further consideration; ii) 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; iii) appoint legal counsel or an adviser to conduct further inquiries into the complaint and advise the complainant, the member, and the ADC in writing; or iv) make a report directly to the Chairperson, in accordance with section 8, where there is no need to conduct further inquiries. b) Legal counsel or the adviser conducting 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 legal counsel's or the adviser's report to the DC. c) Legal counsel or the adviser conducting further inquiries shall report in writing to the DC with findings and recommendations upon completion of such inquiries. d) Upon receiving the report of legal counsel or the adviser, the DC may direct that still further inquiries be conducted with directions. 8. Following a review of the report of legal counsel or the adviser,
the DC shall report in writing to the Chairperson with recommendations
as to the disposition of the complaint, including any remedial measures.
i) determine that the complaint has not been established and close the complaint file; ii) determine that the complaint has been established, the extent to which it has been established, and the remedial measures, if any, that are required; or iii) determine that the complaint has been established and make a recommendation to the Minister for a judicial inquiry pursuant to section 63.2(2) of the Immigration Act. b) The Chairperson shall explain in writing to the complainant, the member, and the ADC, the decision made under subsection (a).c) The decision of the Chairperson is final and is not subject to review or appeal within the IRB. 10. The IRB shall make available publicly, and on an annual basis, an account of the disposition of complaints over the previous year.
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