Good morning, Mr. Chair.
Thank you very much for inviting me to come before the committee.
My name is Michelle Flaherty, and I am a law professor at the University of Ottawa.
I teach administrative law at the University of Ottawa, and I have published in that area. I am also a member or a vice-chair of a number of administrative tribunals within Ontario. My hope today is to bring both an academic perspective and a very practical perspective to some of the work the committee is doing. In my comments today, I wish to speak to you in practical terms about how administrative law principles can guide the important work you are doing in reviewing the work of the IRB. I'm going to speak about three aspects: the appointment process, the complaint process, and training.
To turn first to appointments, in my view the appointment process is the first and most important tool available for promoting excellence at the IRB. I wish to echo what you have heard from other witnesses in terms of the importance of both depoliticizing that process and ensuring that the appointments are merit-based. Although I am speculating to some extent—and I know there have been some concerns raised about conduct of past members of the IRB, as well as assessment of credibility—in my view I really question whether those types of issues would have arisen in the context of a merit-based appointment process.
Depoliticizing the appointment process is not a novel idea. I would point to a number of other jurisdictions, most notably Ontario, where that is the common practice. Indeed, in Ontario there is legislative language that requires that appointments be made based on a competitive and merit-based process, and I am referring here to the Adjudicative Tribunals Accountability, Governance and Appointments Act.
In my view, the appointment process is critical to the work the IRB does. It allows the board to build an adjudicative body based on skilled and capable decision-makers. It gives the board the right building blocks to use in the work it does. As Ron Ellis points out in his submissions, it's a way of cutting off at the pass some of the problems that can arise later. In fact, once we're in the realm of dealing with complaints, arguably it's too late and the alleged harm has already been done.
An effective and merit-based appointment process, in my view, is the best way to address potential problems at the IRB. In my submission there are three key qualities that should be looked for in a merit-based appointee. First, I think it's important that the person have experience, knowledge, or training in the subject matter and the legal issues dealt with by the IRB. Second, ideally the candidate will have an aptitude and experience in adjudicating fair, impartial, effective, and efficient hearings. The final key quality is cultural competency and sensitivity to the issues that are raised and dealt with by the IRB.
I think it's important to note that we don't live in a world of ideal candidates. Not all—or even many—of the potential candidates will have all three of those qualities. In my view, the board needs to have the latitude and discretion to hire and appoint members with a blend of those skills.
I'm concerned that, for example, if you insist on subject matter expertise—in other words, if to be eligible to apply to the IRB, a person needs to have experience in dealing with immigration and refugee matters—you may then fall short in terms of the appointees' abilities in adjudication or cultural competency.
I think this approach of hiring or appointing people with a blend of skills is consistent with what is done at other administrative tribunals. I can tell you that it's consistent with my own experience. I have been appointed to tribunals because of my subject matter expertise, but I have also been appointed to tribunals because of my adjudicative expertise, even though I may not have had a sufficient level of subject matter expertise at the outset.
This, in my view, is where training comes into play. Training should try to centre on the three competencies I identified earlier. It should try to build upon and complement adjudicators' existing knowledge and abilities. It can further enhance subject matter expertise, enhance cultural sensitivity, and improve and facilitate the adjudication of matters. Therefore, teach adjudicators how to hold a fair, efficient, and impartial hearing.
I understand that concerns have been raised about IRB members' abilities to assess credibility. In my view, training is an important part of addressing that issue. There is an existing legal test, and there is a rich body of jurisprudence that courts and all the administrative tribunals across the country use in assessing credibility.
In my view, rather than interfering with those important and rich legal principles, I submit that the more appropriate approach is to first implement a merit-based appointment process, so that individuals are assessing credibility not based on ideological or political reasons but on the evidence available to them. Second, it should continue to train members on how best to assess credibility, how to apply those legal principles, the relevant and irrelevant factors, the aspects to which they need to be culturally sensitive, and the manner in which they can and ought to express their credibility findings in ways that are both intelligible and transparent.
Finally, I want to speak about the complaint process. In keeping with administrative law principles, I agree that a complaint process is an effective mechanism to address misbehaviour by adjudicative tribunal members, including comments and behaviour during the hearing.
Importantly, however, a complaint process cannot be used to interfere with the content of the decision, and I believe this is an important distinction for three reasons. First, there is an existing audit process—a means of ensuring that the content of decisions is appropriate. If a party is unhappy with a decision, it may appeal or seek judicial review on that matter. Courts have been specifically tasked with, and are best equipped for, assessing the appropriateness of the content of the decision.
Second, in my view, little is to be gained by setting up a complaint process that operates in parallel to the courts. If that's done, which of the two matters goes first? All kinds of logistical issues are raised. What if the courts and the complaint process arrive at different conclusions? What does the outcome become at that point? Consider the resources and time required to address challenges to the same decision in different venues. The litigation could be interminable.
Third, there are significant hazards in an overreaching complaint process. The principles of impartiality and independence require that adjudicators make decisions without undue influence and pressure. A complaint process concerning the content of a decision may be construed as undue pressure in the sense that adjudicators may feel they risk sanctions if they decide in a particular manner. These types of pressures raise important fairness considerations, and they leave the administrative decision open to challenge upon review.
I'd like to close with a few brief comments about the role of the chairperson in the complaints process. In my view, there is no inherent bias or unfairness in the chairperson of the tribunal playing a decision-making role in the complaints process.
The chairperson manages decision-makers, and the management role is analogous to the role that he or she would play in terms of the complaint process. I would caution against making assumptions about bias. In my view, the role of the chair is to promote the success of the IRB, both in terms of accomplishing its statutory mandate and in ensuring public confidence.
In closing I would reiterate Ron Ellis' comment, which is that the chairperson's interest should generally align with the purpose of the complaint process, and that there is no one in the system who is more invested in having good and trusted adjudicative members than the chair, whoever that person may be.