Courts should decide if Canada’s refugee board in contempt: Law society

An interior of a courtroom at Old City Hall court in Toronto. Nick Westoll / File / Global News

TORONTO – The tribunal responsible for disciplining lawyers in Ontario has asked the courts whether Canada’s refugee board is in contempt for failing to produce certain documents.

The request comes in the case of Toronto immigration lawyer, Richard Odeleye, accused by three former clients of sexual harassment. They allege he made unwelcome sexual advances and comments, or touched them inappropriately, prompting professional misconduct allegations and a disciplinary hearing.

As part of his defence, Odeleye asked the federal Immigration and Refugee Board for records related to his accusers’ refugee claims. The Law Society Tribunal agreed it should be given the records for review and possible disclosure to the lawyer, but the board has balked.

“The animus that the IRB has shown for our adjudicative processes and procedures is concerning,” Thomas Conway, chairman of the tribunal panel, said in a written decision. “The IRB’s contempt for our process is surprising, coming as it does from a federal administrative tribunal that has the same or similar obligations of procedural fairness as we have.”

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In March after hearing arguments from the parties, the law tribunal ordered the refugee board to hand over the information. The board initially gave the law tribunal 90 pages of documents, some redacted. In response, the tribunal in late April asked for more records, along with unredacted copies of documents already turned over.

The refugee board refused. Among other things, it argued the tribunal had no authority to issue its order, and that the Privacy Act precluded disclosure anyway. In response, the tribunal insisted it did have such powers and again ordered the board to provide the materials by late May.

The board ignored the order and deadline, documents show. During a teleconference in July, a lawyer for the refugee board, Jennifer Harnum, said again that the tribunal had no authority to make its order.

The law tribunal was unimpressed.

“We accept that the IRB and its counsel may not agree with our decision or with our reasoning,” Conway wrote. “But Ms. Harnum, as an experienced counsel, and her client, a federal administrative tribunal, should know better than to simply ignore an order made by an administrative tribunal with the statutory authority to make the order.”

The tribunal repeated its demand for the records in June – again to no effect.

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“No reasonable explanation for the refusal has been tendered for the IRB’s non-compliance,” Conway said last week. “The IRB’s conduct has been as baffling to us as it has been frustrating.”

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Rather than radio silence, the “sophisticated” board could have appealed or asked the courts to get involved, Conway wrote. Simply ignoring the demand was inappropriate and would hurt the fairness of the hearing against Odeleye, he said. Instead, he said, it had deliberately defied the production orders.

As a result, Conway wrote, the tribunal has decided to ask Divisional Court whether the Immigration and Refugee Board is in contempt.

Odeleye, who is in his 60s, was charged criminally in 2015 with sexual assault related to one of the complainants. The prosecution withdrew those charges seven months later. Odeleye maintained the woman was a “disgruntled former client.”

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