1. The Protocol establishes the process that the Transportation Appeal Tribunal of Canada (TATC) follows in dealing with complaints about the conduct of members involving an alleged breach of the Code of Conduct for Members of the Transportation Appeal Tribunal of Canada (Code of Conduct). The Protocol in no way prejudices any right the Governor in Council (GIC) may have to discipline or remove a member from office.
2. The Protocol is based on the premise that a public institution such as the TATC will be strengthened by an accessible, transparent, expeditious and effective complaint process. Such a process is necessary to maintain public confidence and trust in the integrity, objectivity and impartiality of the TATC and, at the same time, ensure fairness to members who may require protection against complaints that are without substance.
3. The TATC is cognisant of the high standards of conduct required of public officials such as TATC members who have been entrusted with the responsibility of making quasi-judicial decisions that profoundly affect the lives of individuals and Canadian corporations. In its ongoing effort to establish and maintain the high level of professionalism that is expected of members,the TATC established a Code of Conduct for its GIC members on November 1, 2011. The Code established the standard of conduct that governs the professional and ethical responsibilities of all TATC members as decision makers of a quasi-judicial administrative tribunal.
4. Members are accountable to the Chairperson for their compliance with the Code of Conduct. As such, where an inquiry into a complaint is conducted, the Chairperson has the authority to dispose of the complaint and to determine if any remedial measures are required.
5. It is important that complaints are dealt with as expeditiously as the circumstances and considerations of fairness and natural justice permit.
6. The principles of fairness and natural justice will apply to the inquiry conducted into any complaint. The member who is the subject of a complaint will be given full opportunity to respond during any inquiry
7. The standard of proof for a finding of misconduct will be the balance of probabilities based on clear and cogent evidence.
8. Complaints will not be considered unless they are filed with the Chairperson in writing and signed by the complainant.
B. APPLICABILITY OF THE PROTOCOL
9. The Protocol comes into effect on August 1, 2015.
10. The Protocol applies to all full-time and part-time members of the TATC. However, the Protocol does not limit any rights or obligations that members may have or are subject to under any other applicable legislation, guideline, code, policy or instrument.
11. The Protocol ceases to apply to members once their mandate expires.
12. The Protocol applies only to complaints about the conduct of members in their role as members of a tribunal. The applicability of the protocol shall be determined by the Chairperson. It does not apply to adjudicative decisions or the exercise of discretion by members while conducting hearings. Such errors or perceived errors are properly the subject of an appeal or an application for judicial review.
13. The Protocol does not apply to concerns about the management, administrative policies, or practices of the TATC.
C. COMPLAINTS ARISING DURING PROCEEDINGS
14. A complaint about the conduct of a member may arise during the course of a proceeding before that member. The alleged conduct at issue may occur either inside or outside of the hearing room.
15. If the complaint relates to an allegation of bias, the proper course is for the issue to be raised prior to the beginning of a hearing on an application for the recusal of the member. If such an application has not been made or has been made and rejected, the expression of a complaint under this Protocol shall not require the member to withdraw from the proceeding. The Protocol will not be allowed to become a vehicle for removing members from panels.
16. A complaint regarding a member's conduct may also arise mid-hearing. In most cases, the Chairperson will postpone dealing with the matter until the member has completed the case and rendered a written decision.
D. INFORMAL RESOLUTION OF COMPLAINTS
17. The informal resolution of complaints should be attempted whenever possible. This process is more expeditious, less costly, and usually more mutually satisfactory.
18. In addressing a complaint informally, the Chairperson may meet with the complainant and/or the member in an attempt to resolve the complaint. If the complaint is resolved in this manner, a letter will be written to the complainant advising them of the resolution. A copy will be provided to the member.
19. The Chairperson may also dismiss a complaint by finding:
a) the complaint is without merit;
b) the complaint is about the “correctness” of a member's determination or decision;
c) the complaint is not serious enough to warrant further consideration.
The Chairperson, in such cases, shall write to the complainant and explain why the Protocol does not apply or why the matter shall not be dealt with further.
20. If the Chairperson determines that the circumstances outlined within a complaint may threaten the integrity of the TATC, or the complaint cannot be resolved informally, the Chairperson shall conduct a formal enquiry. Per Section E, the complainant will be advised in writing by the Chairperson.
E. INQUIRIES INTO COMPLAINTS
21. Upon receipt of a written complaint, the Chairperson shall provide a copy to the concerned member.
22. The member may provide a written response if they wish to do so.
23. The Chairperson may request further information from the complainant or the member, or may make further enquiries as required, to complete the inquiry.
24. Upon completion of all reasonable enquiries the Chairperson may:
a) determine that the complaint has not been established and close the complaint; or
b) determine that the complaint has been established, the extent to which it has been established, and any remedial measures that may be required.
25. The Chairperson shall provide the complainant and the member with the final decision. The decision of the Chairperson is final and is not subject to review or appeal before the TATC.
26. The Chairperson shall make available publicly, on an annual basis, a summary of the disposition of complaints of the previous year.
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