Citizenship and Immigration Committee on March 20th, 2018

[Jenny Kwan, NDP, Vancouver East, BC]

I will offer that precisely because the chair has to ensure that the process and inner workings of the IRB are effective, you need an independent person to look at complaints. Otherwise, he or she, the chair, would be in conflict. You're conflicted in saying, “I am now going to have to investigate somebody within my organization and take action and make that determination.” Whatever action you decide as the chair will have an implication on the operation of the IRB on the whole. That puts you in an automatic conflict. Therefore, to put it as an arm's-length environment would mean that those decisions would be open, accountable, and transparent. It would absolutely be above reproach.

I would urge the board to consider and to rethink this, because I don't think you're doing the IRB a service by not going all the way. Granted, you have now sort of implemented this process and it will be evaluated again, but people are already concerned that this is a situation where this is an issue of conflict.

The other issue I want to bring up is this. A decision has been made about a particular appointment, and the individual is now gone from the IRB. No information is provided as to what has happened there. More importantly, for the people who have outstanding complaints, with that particular appointment, there's been no explanation given to them. It is as though somehow their complaints have been resolved when in fact they have not been. They have been told that the case has now been closed.

How is that justice? As other members have said, justice has to be served, but justice also has to be seen to be served. How is it that when you have an outstanding complaint that the person who filed it feels is valid, all of a sudden that complainant can be told that the complaint is no longer open because the person is now gone?

Their complaint has not been resolved. Would you not agree with that?

[Paul Aterman]

I can understand that perspective.

However, the member is no longer an employee. That's why the issue is determined to be closed.

[Jenny Kwan, NDP, Vancouver East, BC]

Sorry, I'm going to interject there. Just because the person is no longer an employee does not mean that the investigation of the existing complaint should not be completed. The finding of the complaint at the time of the issue, and of the case when it happened, should still have an outcome. When a person leaves, that means the disciplinary action that may follow may not be applicable, but it doesn't mean that the complaint is not a valid complaint and not worthy of investigation.

[Paul Aterman]

Could I just explain that any fair investigation involves a neutral party talking to both sides. When one side is no longer there, you can't conclude the investigation.

[Jenny Kwan, NDP, Vancouver East, BC]

You're saying that you cannot complete the investigation because the person has left and you have no capacity to investigate the matter.

[Paul Aterman]

He is no longer an employee. In terms of a fair investigation, we don't hear both sides of the story.

[Jenny Kwan, NDP, Vancouver East, BC]

The IRB has no capacity to investigate outstanding complaints. Even under this new process, you're saying that if the person who received the complaint is now gone, you have no capacity to follow through.

If that's the case, shouldn't that be addressed in this new complaint process, because that is not serving justice?

[Paul Aterman]

I'm not sure I understand the question.

I think in any instance, as I said, a neutral investigation involves a neutral investigator talking to both sides who are involved in that particular issue. If one side is no longer there, is no longer available to provide their account, you can't conclude the investigation, unless you have a power of summons or something like that.

[Jenny Kwan, NDP, Vancouver East, BC]

That leaves the question of whether there is an ability to ensure that when you're an employee at the time that a complaint has been lodged that therefore you need to be available for that complaint to be completed. You can't say in the middle of the investigation, or after the complaint has been lodged, “Okay I don't want to do this anymore. I'm going to quit.”

[The Chair, Liberal, Rob Oliphant]

I'm afraid I need to cut you off there. Sorry about that.

Mr. Whalen, for seven minutes. We'll go back to our regular amount of time.

[Nick Whalen, Liberal, St. John's East, NL]

Thanks, Mr. Chair.

Mr. Aterman, I appreciate that you came into a situation where there was a very bad process for adjudicating complaints. You proposed a change. I believe Mr. Tilson and Ms. Kwan are correct in noting that the change doesn't measure up to what we would normally feel to be the best practice or the normal standard for adjudicating a judicial role. Typically, when you look at what happens elsewhere in the country, even if there's an investigative role that happens internally, the complaints are reviewed by a panel that includes lay people, which is to ensure that the public has confidence in the system.

If we are being independent reviewers of your system, I think from our perspective there are more steps that need to be taken to see it improved further. As to whether your decision would be correct in terms of whether or not to convene the review panel, some of the processes we've seen include that role.

However, there were 170 complaints, and you said only 21 were founded. That seems to be saying that 85% of complaints that are being brought are unfounded.

Are these often brought by the counsel? How does this break down, this 85% of unfounded cases?

[Paul Aterman]

I would say largely they are brought by people who are represented. Some of them are brought by people who are unrepresented. The spectrum of complaints ranges very widely. Some of them have absolutely nothing to do with a member's conduct. They will style it as a complaint under the code of conduct, and it will be something such as the board's practice in scheduling cases, which is an administrative matter.

[Nick Whalen, Liberal, St. John's East, NL]

There are only 170 complaints, so it would be great if you could provide a breakdown of those. I think that would provide comfort to the public as to why they are not moving forward.

[Paul Aterman]

Yes.

[Nick Whalen, Liberal, St. John's East, NL]

With respect to the 21 founded cases, what happens to the IRB member whose conduct is to the point where the complaint is worthy of an investigation? Are they sidelined? Is a wholesale review done of all their cases to date to ensure that justice has been served? What happens in the review practice with respect to the decisions made by those 14 members who were subject to founded complaints?

[Paul Aterman]

The response varies with the nature of the complaints. Some of them have been instances where a member who's otherwise a fine performer has a bad day and loses their temper in the hearing room and says something that was ill-considered. In instances like that, we've had the member, for example, write an apology, or the board has addressed the issue by sitting down with the member and discussing it. Some of them have been more serious, and we've had to sit down with a member and say, look—

[Nick Whalen, Liberal, St. John's East, NL]

How many of the 14 were more serious, to the point where you've had to do a review of the practices of the adjudicator?

[Paul Aterman]

This is an undertaking that I believe you'll receive this afternoon.

[Nick Whalen, Liberal, St. John's East, NL]

Oh, okay.

[Paul Aterman]

Typically, the member's manager would sit down and have a discussion with them. They may be directed to do some training. There was an instance where we removed the person from the hearing schedule altogether. There have been instances where they've written letters of apology. It's really a function of the nature of the complaint and the corresponding answer to it.

[Nick Whalen, Liberal, St. John's East, NL]

How many go to the decision-making ability of the IRB member? They're adjudicating 1,000 cases each year, so that's a lot of people whose lives are prejudiced by poor decision-making. Of those 14 members, for how many have you had to go back and review the case history to make sure they were fair to all the other people who were subject to—

[Paul Aterman]

We're dealing with a complaint that arises in a particular instance. We're not necessarily going back and looking at all of the past decisions—

[Nick Whalen, Liberal, St. John's East, NL]

In the cases of Ms. Cassano and Mr. Sterlin, who have been the subject of Global News investigations and reports, even as recently as last week, that said Ms. Cassano has left, the types of complaints that were made go to the very character of the IRB professional and whether or not they are good decision-makers in this context. If you look at the average of 1,000 cases a year, even for those two, there are maybe as many as 18,000 cases to be reviewed.

Have they been reviewed?

[Paul Aterman]

They're not doing 1,000 cases each. They're doing in the order of a few hundred in the course of a year, or maybe 150.

[Nick Whalen, Liberal, St. John's East, NL]

Okay.