Citizenship and Immigration Committee on April 24th, 2018

[The Chair (Mr. Robert Oliphant (Don Valley West, Lib.)), Liberal, Rob Oliphant]

Good morning. I'm going to call to order this 106th meeting of the Standing Committee on Citizenship and Immigration as we continue our study of the Immigration and Refugee Board's appointment, training, and complaint processes.

I begin by thanking Ms. Jacobs for returning after our last meeting and for being available.

Unfortunately, your colleagues who were also witnesses on the same day are not able to come, but we are glad you are here for questions from the committee.

In our first hour, we'll begin with Ms. Warner, who has a statement coming from the Canada Employment and Immigration Union as National Executive Vice-President.

Thank you for accepting our invitation to come to the committee. That's very good. You have time for a statement and then we'll turn it over to the committee, which will have questions for either of you in our first hour of the meeting. It's over to you, Ms. Warner.

[Crystal Warner, National Executive Vice-President, Canada Employment and Immigration Union]

Thank you.

Thank you to the committee for inviting me.

As a nationally elected representative speaking on behalf of the majority of unionized employees at the Immigration and Refugee Board, I appreciate an opportunity to address this committee. We often express, in organized labour, our frustration around the lack of consultation that we are afforded as the elected representatives of the workers, so I encourage your committee to continue working with our union beyond today.

Some of my history includes 10 years working for the IRB in Vancouver, in various positions and divisions in the capacity of registry support staff. I am also the daughter of Chilean asylum seekers, which motivated me to find a career both working with asylum seekers and serving Canadians.

CEIU is a component of the Public Service Alliance of Canada, representing over 18,000 members, including the vast majority of unionized employees at the IRB, IRCC, and Service Canada. Last year, I was elected to my current full-time paid union position as the national executive vice-president of CEIU. In my capacity as NEVP, I oversee representation and labour relations. We represent the PM-6 decision-makers in the RPD and ID divisions of the IRB.

I was asked to speak to the committee from an organized labour perspective regarding the appointment process of members, their training, and the manner in which administration deals with complaints about member conduct. Our PM-6 decision-makers in the RPD are not allowed to comment publicly, so, as their elected representative, I will do so for them.

I have spent countless hours speaking to our PM-6 decision-makers in the IRB over the last week and, in fact, over the last several years. They are going to work every day dealing with the pressures of producing decisions, with a lack of support in the administration of their decision-making and a lack of mentorship. For the past two years, the vast majority of them have not even been properly compensated for their labour, thanks to the Phoenix pay system.

To that end, it's a bit frustrating that the first time that our union is being invited to participate in a venue such as this is as a result of concerns regarding the complaints process instead of regarding how to better serve the workers at the IRB.

I'll begin by addressing the appointment process of decision-makers. On December 15, 2012, CEIU welcomed the RPD decision-makers to our union. Almost immediately, we could see that there would be issues that required our attention. When the decision-makers became public sector workers, they were, and continue to be, paid significantly less than their GIC counterparts, by approximately $20,000 a year. They reported, and continue to report, that they're discouraged from claiming necessary overtime to fulfill their mandates.

We know our members have been providing the IRB with countless hours of uncompensated labour. Beyond this, I've heard this committee discuss both Governor in Council and public sector decision-maker recruitment and appointments. CEIU fundamentally believes that all decision-makers at the IRB should be public sector workers. GICs are constantly concerned about not being renewed. Instability in the appointment process and the insecurity of the positions themselves attracts a narrow field of candidates, often people with similar and privileged backgrounds.

Further, in an era where precarious work is on the rise, permanent employment is sought after by qualified candidates. We believe that the new appointments for decision-makers should be indeterminate, not term, to attract more skilled candidates. These appointments should be based on merit and experience. There should be no room for political influence through a political process to appoint decision-makers.

That being said, we do agree with many of the comments we have heard coming out of this committee. Decision-makers of the board should be reflective of the communities of the people who come before it, so equity staffing of LGBTQ persons, persons with disabilities, and racially visible persons should be not only encouraged but mandated.

Our union would welcome the opportunity to be consulted on developing an equity staffing policy.

With regard to the training of decision-makers, I have heard from other witnesses about a perceived lack of sensitivity in other training being provided. Having spoken to decision-makers across Canada, and through my own experience working for the board, I'm assured that there is, in fact, ample training being provided.

I would put forward other related matters for your consideration, specifically the need for additional support. Our members have raised the issues of lack of mentorship and pressures to meet unrealistic targets in completing decisions. As well, since 2012, our decision-makers have been forced to waste time trying to figure out how to make administrative inputs into the electronic database system, and they lack support by registry staff in preparing files for hearings.

In 2012, tribunal officer positions were eliminated. These positions served to prepare work for the decision-makers. Now that support is no longer available to them and additional administrative job duties have been added to their already overburdened workloads.

The current backlog at the IRB exists for two reasons: irregular border crossings and years of the board being under-resourced. This government is now providing more resources in order to better respect legislative timelines. That being said, it's unfortunate that funding is for only two years when it should be more permanent.

We believe that without significant changes to the supports put in place for our decision-makers, quality decisions will begin to be cast aside in favour of quantity, to deal with the backlogs. As a union activist, I have a concern about the amount of pressure being placed on my members to produce decisions, but as a Canadian, my concern is about the integrity of fast decisions. We are also concerned about the move to more paper-based hearings in order to render more decisions. This affects the credibility of decision-making and removes some of the humanity from the asylum process.

Regarding the manner in which administration deals with complaints about decision-maker conduct, I'd like to state that, like many of you and many of your witnesses, our union had concerns about the former administration of complaints. That being said, given the number of decision-makers and the volume of decisions they are required to render, I'm actually encouraged that, to my knowledge, there are currently only two outstanding complaints before the board. So while there may be a desire to condemn one or two individuals who have been found to have done wrong, it's unfortunate that the board isn't being acknowledged for the tremendous work it is accomplishing while under such undue pressure. There is a new investigation process at the IRB, and in our opinion, we should allow this new process to function before we condemn it or attempt to reinvent it. It's management's role to manage, and any outside process would, in our view, politicize what is a management process.

I would also ask you to consider the impacts of an external and public review for complaints made against decision-maker conduct. We have a real concern that an external system would be abused to discredit either a board decision-maker or the board itself. From a union perspective, we worry that our right to represent will be limited or diminished. We might even argue that our members are being subjected to a process that falls outside the confines of the collective agreement. This would be an overreaching complaint process, providing additional, undue pressure on our PM-6s, which raises concerns of fairness. We believe it would only serve to politicize the complaints process and provide an opportunity to slander the decision-makers in the press. Our members have the right to privacy and due process.

At the end of 2018, the IRB will initiate an independent audit of the new complaints policy. Our union is committed to working with the employer on this policy, and we should allow this process to unfold. Why choose now to create a whole separate process when we have one? I would humbly suggest that you should redirect those revenues to fixing Phoenix.

Thank you.

[The Chair, Liberal, Rob Oliphant]

Thank you.

We begin our questions with Ms. Alleslev, for seven minutes.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Thank you very much.

I'd like to open with a question to Laverne.

In your previous testimony around the code of conduct, you gave us some ideas about how important a code of conduct would be and noted some of the challenges around implementing and executing that. Could you give us a little more detail, and remind us of some of the key elements that you gave us at your last testimony?

[Professor Laverne Jacobs, Associate Professor and Director of Graduate Studies, Faculty of Law, University of Windsor, As an Individual]

Codes of conduct are relatively new in this world of administrative law. That's part of the reason they've caused a bit of concern. Another thing is that they have been implemented.... For example, in Ontario, there has been a statute that requires implementation of codes of conduct, but there's no guidance as to what should be included in them and there's also no guidance about a complaints process about them. In fact, if you look at codes of conduct across the country, the ones that do exist, there are very few that have an actual complaints process. In a sense, the IRB should be commended for having set itself into a new field of creating a complaints process. The one exception, quite a large exception, is in Quebec, where there is a council that's been around for 20 or so years and there's quite an elaborate process. It could be used as a model.

Some of the things I said in terms of best practices were that we need to have an investigatory panel and that the ideal process would end with an independent decision-maker, so not the chair but someone else. The reason I said this is twofold. One is that having an independent chair avoids the kinds of issues we see with the IRB. The IRB is just a microcosm of what will happen, which is that the public will generally think that the chair of a tribunal is trying to protect the tribunal. We can avoid that by having an independent final decision-maker. The other thing is that we need to prevent chairs from having any kind of influence on the decision-maker itself. This goes back into deep and long jurisprudence in administrative law, in which it's seen as a violation of the independence of a decision-maker to have the chair or anyone have an inappropriate influence on the decisions being made.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Crystal, you indicated that you're not comfortable with an external board. Could you give us an idea of why and at the same time give us an idea of the union's role in a complaint to support its membership?

[Crystal Warner]

As I mentioned, our concern with an external board is that the process would be abused. People would start to use this process to member shop for different decision-makers. More importantly, our members are entitled to due process and privacy.

Also, under the current process we have consulted with the IRB. We had a national labour management meeting last week, and we had a discussion about the role the union plays in the internal process. That's an ongoing conversation, but we represent our members well, and when the process is internal to the IRB we are in a position to be able to collaborate with the employer and ensure that our members are receiving the due process they're entitled to under the collective agreement.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Why would you be precluded from representing your members if there were an external board?

Laverne, in your opinion, would the due process be jeopardized by an independent board?

[Crystal Warner]

We're concerned about our diminishing right to represent, because we don't know what that outside process looks like. We've heard some suggestions here, but without maybe having a clearer idea of what that process would look like, we're raising our red flags right now.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Potentially, it's not necessarily the external nature or the independent nature of it, but it would be whatever the process structure is?

[Crystal Warner]

That's part of it, but it's also the fact that it would be outside of the board. Why would we be taking away the employer's right to manage? The chairperson of the IRB, arguably more than anyone else, has a vested interest in his decision-makers respecting values and ethics. I don't understand why we would take that right to manage outside the board.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Ms. Jacobs, would that affect management's right and would it affect the due process of the members involved?

[Prof. Laverne Jacobs]

I think this is a very unusual situation, because we have decision-makers who are part of the public service. This is not normally seen. GIC or OIC appointees are the normal approach.

In terms of the process, it's hard to say because I don't have any examples. I don't think it necessarily has to exclude due process. I think it's correct to say it's a matter of shaping that process, so if there is a need or a reason for the union to be involved, the union should be involved.

Again, I want to emphasize how unusual this entire scenario is, simply because we don't usually have individuals from the public sector as decision-makers.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

In your opinion, should there be two separate processes, one to deal with unionized and one to deal with others?

[Prof. Laverne Jacobs]

I'd have to think about that a little more carefully; all I can say for now is that without having looked through all the details, I think it's a matter of considering the problematic factors in finding out whether or not the process could be shaped to address them.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Ms. Warner, would you suggest perhaps two different processes, based on the two different employment structures?

[Crystal Warner]

I'd have to think about that as well. To my knowledge we have two founded complaints a year, on average. A lot is unclear to me as to why we're paying so much attention to this.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

How many investigations are there? You're saying two are founded. Our committee understands that the majority of the complaints arise from public servants.

[Crystal Warner]

I don't have those numbers in front of me.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Could you give us some idea of the disciplinary range of consequences for your membership in this scenario?

[Crystal Warner]

Like anything else, our collective agreement provides for disciplinary measures up to and including termination.

Employers have the right to manage performance, and we expect them to adhere to the process laid out in the collective agreement.

We're there to defend our members and ensure that the employer is respecting due process.

[The Chair, Liberal, Rob Oliphant]

Thank you very much.

[Leona Alleslev, Liberal, Aurora—Oak Ridges—Richmond Hill, ON]

Thank you very much.

[The Chair, Liberal, Rob Oliphant]

Mr. Maguire.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Thank you, Mr. Chair.

Thank you as well for your testimony today, Ms. Warner.

My colleague was talking about the two-pronged hiring process we have. Can you explain for the record the differences you see in those two different areas and the reasons for them?