Complaint summaries

Case No. 2022-03

The complainant was a party in an appeal before the General Division.

The complainant said the member failed to make the hearing accessible. The Chairperson informed the complainant that the Tribunal would investigate the part of her complaint that fell under the Social Security Tribunal Members’ Code of Conduct (Code of Conduct). The Tribunal investigated whether the member breached section 6.5 of the Code of Conduct, which says: “If a party needs accommodation in order to participate fully in the proceeding, members must make reasonable accommodations.”

The Chairperson concluded that the member did not breach the Code of Conduct when the member chose to forgo an informal case conference and decide the appeal based on the documents in the file. While members should make reasonable accommodations in all aspects of a proceeding, including case conferences, this was a challenge in the complainant’s case because of her geographic location outside Canada and her inability to connect by phone or computer.

The Chairperson found it was appropriate for the member to decide the appeal based on the documents in the file because of the complainant’s request to the member to make a decision, the member’s determination that no additional information was required for a fair decision, and the member’s obligation to make the appeal process simple, quick and fair.

Outcome: the member did not breach the Code of Conduct.

Case No. 2022-02

The complainant was a party in an appeal before the General Division.

The complainant said the member breached sections 4.1, 5.2, 5.3, 6.6 and 7.2 of the Code of Conduct by

• calling individuals whose letters the complainant relied on “liars”,
• advocating for the other party,
• improperly considering evidence and court decisions,
• making up their mind from the start, and
• delaying in sending a copy of the hearing recording to the complainant.

The Chairperson asked the Vice-Chairperson of the Appeal Division to investigate the complaint and make findings of fact. Based on the investigation report, the Chairperson determined whether the member breached the Code of Conduct.

The Chairperson concluded that the member did not breach the Code of Conduct. In particular, the member did not call the individuals the complainant relied upon “liars” nor imply that they would lie. The member did not act as the other party’s advocate in asking the complainant questions about some of the evidence and the other party’s arguments. The Chairperson concluded that the member acted appropriately in taking an active role and asking questions during the hearing.

The Chairperson decided that aspects of the complaint fell outside the scope of the Code of Conduct. This included the allegations that the member disregarded evidence, improperly considered court decisions, and did not make the decision impartially. These were issues to be appealed to the Appeal Division rather than addressed through the Code of Conduct.

The Chairperson also decided that the complainant’s request for the hearing recording was not about the member’s conduct as it was processed by Registry Operations, and the member was not aware of the request.

Outcome: the member did not breach the Code of Conduct.

Case No. 2022-01

The complainant represented the estate of his mother in an appeal before the General Division.

The complainant sent an e-mail to the Tribunal Registry raising concerns about the General Division member’s conduct at a pre-hearing conference, including that the member was late and unprepared, and had unexpectedly raised the issue that the case may be outside of the Tribunal’s jurisdiction.

The Chairperson replied to the complainant stating that he would look into whether the member had breached the Code of Conduct for Members of the Social Security Tribunal of Canada (Code of Conduct), but that the investigation would not take place until after the adjudicative process was complete.

The complainant said the Chairperson breached the Code of Conduct by improperly intervening in the General Division appeal, by failing to promptly address a complaint against a Tribunal member, and by preventing the complainant from adding the e-mail communications between him and the Chairperson to the appeal record.

The Administrative Tribunals Support Service of Canada, which provides support services to the Tribunal, appointed an external law firm to investigate and determine whether the Chairperson had breached the Code of Conduct.

The investigator found that the Chairperson had not intervened in the General Division appeal. The investigator noted that, having implemented a Code of Conduct, the Tribunal had an obligation to take steps to respond to complaints against members when they arose. The Chairperson’s response to the complainant was not an “intervention”; rather it was an entirely appropriate response to a Code of Conduct complaint. The Chairperson indicated that he would not conduct an investigation until the case before the Tribunal had concluded in order to avoid influencing the member’s decision.

The investigator also found that the complainant’s allegations against the member were not serious enough to require immediate action.

Finally, the investigator found that there was no basis for the claim that the Chairperson was responsible for not including the emails communications respecting the complaint in the appeal record. While there was uncertainty among staff on how to handle complaints, the Tribunal’s practice is to keep a complaint about a member separate from the substantive legal or factual issues before an adjudicator. This was the appropriate approach to ensure that the Chairperson was not seen as inappropriately interfering with a case.

Outcome: the Chairperson did not breach the Code of Conduct.

Case No. 2019-004

The complainant was a counsel for a party in a hearing before the General Division.

The complaint was about the conduct of the member during the hearing. The complainant said that the member acted in a way that was discriminatory, and was not neutral.

The Chairperson decided to have an external investigator examine the complaint. The investigator’s job was to review the documents in the file, listen to the recording of the hearing and interview any witnesses, including the parties and the counsel.

The investigator would make findings of fact, and the Chairperson would then decide if the member had breached sections 4.1, 6.1, 6.3, 6.4 and 6.6  of the Code of Conduct.

The investigator contacted the complainant in early April, 2021 in order to meet virtually to discuss the process. The complainant did not respond to multiple requests by the investigator. The Chairperson wrote to the complainant, and said that if the meeting did not take place, the complaint would be dismissed.

The complainant agreed to a meeting, but then twice failed to attend it. The meeting eventually took place in mid-June, 2021. The complainant undertook to provide the investigator with names of witnesses and more documents. The investigator followed up repeatedly to obtain this information, but the complainant did not provide it. At the end of July, 2021, the Chairperson wrote to the complainant, and said that if the information was not provided within a week, the complaint would be dismissed.

The complainant did not provide the information. The Chairperson decided to dismiss the complaint because the complainant failed to participate in the investigation process.

Outcome: the complaint was dismissed.