The challenges of criticizing counsel
Also, more on the risks of active adjudication
A view of the Rideau River in early October…
Active adjudication and bias
I had been planning to summarize a recent case from the British Columbia Court of Appeal (Environmental Appeal Board v. District Director, Metro Vancouver, 2025 BCCA 303) on bias and active adjudication, but fortunately, Professor Paul Daly beat me to it.
The court noted that the lines of questioning from the appeal board panel “frequently strayed from any attempt to get to the substance of the issues before the Board, focussing instead on peripheral matters” that appeared irrelevant to the real issue before the board. The court also noted that “the tenor of the questioning was seemingly directed at undermining the credibility” of one party’s witnesses.
Part of the Court of Appeal decision rested on a suggestion by the appeal board that it was acting as an inquisitorial body and not an adjudicative one. The court found that it was in an adjudicative role.
Professor Daly commented:
Whether having an inquisitorial or investigatory function permits even more active adjudication than an adjudicative function is an interesting question. For my part, I think the concept of active adjudication already blurs any clear lines that might exist between the adjudicative, the inquisitorial and the investigatory. And in all contexts, there are some types of questioning — repeated, aggressive, demonstrative of a fixed position — that should be avoided. Where, as here, the parties are represented by counsel, it is wise for decision-makers to take something of a back seat and only intervene where it is necessary to get clarity on a key element. That said, in a multi-day hearing where the adjudicator is struggling for clarity on key points, this may be a counsel of perfection and, indeed, an adjudicator may well rely on counsel to intervene if any line of questioning from the panel is judged to be problematic. In this area, as in so many others of administrative law, all that can be confidently stated is that there is a line that the decision-maker should be careful not to cross.
I have written about active adjudication and bias before: “Active adjudication and impartiality” in 2014 and “The Limits of Active Adjudication” in 2016.
I disagree that adjudicators should take a “back seat” in any hearing - even if the parties are represented. Engaging with the evidence shows the parties that an adjudicator is listening. However, I agree that the tenor or tone of the questioning is critical when engaging with the evidence. Sarcasm is definitely out of the question. And, adjudicators should tread carefully when asking questions that might undermine the credibility of a witness - that is the role of cross-examination by the opposing party.
The perils of an adjudicator criticizing counsel
The Immigration and Refugee Board (IRB) has an established process for complaints against members of the IRB (individual adjudicators). A recent decision of the Federal Court shows the challenges of implementing such a process.
In this case, the complaint against the member was filed by counsel for the Minister of Public Safety and Emergency Preparedness (the “Minister”) who had appeared before the member to oppose the release of an individual from detention. The complaint was a personal one (in other words, not supported by the Minister).
The court sets out in detail the discussion between the member and counsel during the hearing. Counsel impugned the earlier decision by another member:
I understand that the Division found otherwise — found a low flight risk at the 48-hour detention review, but there is no world in which this is the case.
Referring to the applicable Chairperson’s guideline for release from detention, the counsel said:
I would go so far as to say that the guideline is flawed. …
…
And the guideline cited does not cite any jurisprudence. It is untethered to the law. It only cites itself. It is incestuous. It cites other Chairperson’s Guidelines.
Later in the day, the member issued her oral decision (holding that the individual would not be released). She then made comments to counsel and specifically told the interpreter that there was no need to translate (leading to the implication that her comments were not part of her decision). Since these comments are central to the complaint they are worth setting out in full:
Thank you. All right. I just want to conclude this decision by saying that, in this Division’s view, there are certain aspects of the Minister’s Counsel submissions that I believe deserve some comment.
Over the course of the Minister’s Counsel submissions, there were some very pointed words and phrases that were used to describe findings made by this Division and the guidelines relied on by this Division in reaching those findings.
Minister’s Counsel, in submissions, referred to the Guidelines as being ‘flawed, incestuous, and completely redundant.’ These types of comments, in my view, set a dangerous precedent and could bring the administration of justice into disrepute.
I feel obliged to remind the Minister’s Counsel that these guidelines were crafted and refined over time with the assistance of several stakeholders, including the CBSA, and the Federal Court has also upheld the use and existence of these guidelines and has referred to them in many cases.
Counsels who present before this Division can argue that the law should be distinguished or not applied, as the case may be, but to suggest that our guideline overall is incestuous is, in this Division, you showing contempt for this Tribunal and the decision-making process.
And similarly, with respect to the findings of the previous detention review, the Minister’s Counsel has submitted that it is not based on any lawful or substantial analysis. And when referring to the findings made by the previous presiding Member that the person concerned represented a low flight risk, the Minister’s Counsel submitted that “there is no world in which this is the case.”
I am surprised that I have to remind the Minister’s Counsel that his role is not that of a reviewing court. The Minister, of course, has to represent the Minister’s position, but presumably in a way that respects the values enshrined in the code of conduct for public servants. It was open to the Minister to seek judicial review of the previous decision, and the Minister may also ask this Division to revisit its previous findings if there is reason to depart from those findings, but it should not be done in a way that expresses, essentially, disdain for the IDs decisions and decision-making process.
So, going forward, I am going to remind the Minister that all parties before the Immigration Division are expected to please present their cases in a professional manner that upholds the rule of law and demonstrates respect for the process and for this Division.
On the same day as the hearing, the counsel filed a complaint form and submitted it to the Ombudsperson of the IRB. The counsel stated that the member was in breach of the following sections of the Code of Conduct for Members of the Immigration and Refugee Board of Canada:
9. Members shall conduct hearings in a courteous and respectful manner.
10. Members shall exercise their duties without discrimination. Members must take reasonable measures to accommodate all participants in a proceeding so that they may participate effectively. Members are expected to take into account social and cultural differences and to respect human rights.
11. Members are expected to act honestly and in good faith, in a professional and ethical manner
12. Members shall conduct themselves with integrity and avoid impropriety or the appearance of impropriety.
In his complaint form, the counsel said that the phrases “in no possible world” and “incestuous” were used “respectfully and were well within the bounds of normal and proper advocacy”. He continued by stating that the member breached the Code in the following ways:
1. Attacking Minister’s counsel on record in a public hearing, making serious allegations of professional misconduct, in full knowledge that Minister’s counsel would be unable to defend himself. This was an abuse of power. It served no purpose and touched on no live issues at the hearing. In leaving this attack to the end it was implied that the perceived lack of courtesy was of the greatest importance, above and beyond the issues at the hearing and the decision itself.
2. Making accusations of a personal nature, against Minister’s counsel, which were untested, biased, and false.
3. Implying that the IRB Chairperson’s Guidelines were beyond critique. The Member said that “owing to the lengthy consultation process involving multiple stakeholders” it was inappropriate to speak against the Guidelines. The Member chastised Minister’s Counsel for doing so.
4. Telling Minister’s Counsel that, if he takes issue on a point of law raised at the previous detention review, the appropriate solution is “to seek judicial review”.
5. Warning Minister’s counsel that the diction of his pleadings should not deviate from bounds predetermined by [the member].
He also made the following comments about the member’s behaviour in the hearing room:
The [member] was discourteous and disrespectful. She made an inappropriate and personal attack against a representative of a party and did so in an unprofessional manner. There are issues of law which, as part of their duty, advocates must raise. [She] acted in a manner so as to discourage open and honest pleading. Parties cannot participate effectively in a proceeding under apprehension of punishment for doing their duty in arguing issues of law. Members cannot make effective decisions if they do not entertain and listen to such pleadings.
There is a reasonable apprehension that [the member’s] expressed personal dislike for Minister’s Counsel will impact future hearings.
The [member] should be aware that there exist a variety of manners of expression and should avoid arbitrarily penalizing manners of expression which differ from her own.
In the judicial review application, the complaining counsel set out the following elements of the member’s comments that were problematic:
her statement that his comments “set a dangerous precedent and could bring the administration of justice into disrepute”;
her suggestion that he was “showing contempt for this Tribunal and the decision-making process”;
her suggestion that he might not have acted in a manner “that respects the values enshrined in the code of conduct for public servants”; and
her finding, in essence, that he had acted in a way “expresses, essentially, disdain for the [Immigration Division’s] decisions and decision-making process”.
The counsel maintained that his submissions were “entirely professional and within the bounds of normal and proper advocacy.” He also stated that the member’s comments damage his reputation.
The IRB Procedures prohibit complaints about what a member decides in a case, or questions related to procedural fairness and natural justice. In the letter dismissing the complaint (based on the recommendation of the Ombudsperson) the IRB Chairperson wrote:
… [the] complaint is about what the Member stated while giving her reasons for decision. The reasons presented in a member’s decision are covered by adjudicative independence. For this reason, the allegation falls outside the scope of the member complaints process. The Ombudsperson has recommended that I dismiss the complaint because the allegations are not within the scope of the member complaints Procedures.
In the end result, the court found that the reasons of the Chairperson were “not responsive”, did not “meaningfully grapple with the issues” and lacked “a rational chain of analysis”. For these reasons, the judicial review was granted.
There are a few findings and asides that are, however, relevant to adjudicators.
Firstly, the court determined that the Code of Conduct applies to members during hearings “including in the delivery of their decisions and concluding remarks”.
Secondly, the judge stated in words he described as “obiter dictum” and “non-binding” that “these comments taken together certainly could damage the Applicant’s professional reputation”. The judge also stated that the counsel’s comments “were within the range of permissible comments by counsel in context”.
I am no fan of “obiter dicta”, especially when the judicial comments seemingly tie the hands of the decision-maker, as they appear to do here. I suppose that there may be an element of efficiency at play here, as the judge appears to be saying that if the complaint is once again dismissed by the IRB Chair, any subsequent judicial review would be allowed. However, that becomes just a cute way for the court to decide the matter on its own.
