By Don Butler, Postmedia News October 11, 2010

OTTAWA — The Public Service Commission is investigating 13 appointments made by the Immigration and Refugee Board of Canada, some involving its most senior officials. The investigations were sparked by a 2009 audit that found serious flaws in the Ottawa-based IRB’s hiring practices. The PSC is probing whether the 13 appointments were based on merit and followed “guiding values” laid down in the Public Service Employment Act. The IRB claims the investigations “violate the rules of procedural fairness.” It has asked the Federal Court to halt them until the court can rule on a judicial challenge of their methodology. If allowed to proceed, it says in court documents, the investigations will cause “irreparable harm” to the IRB.

The IRB is Canada’s largest independent administrative tribunal, making more than 47,000 decisions on refugee protection and immigration matters every year.

Its effectiveness depends on maintaining the public’s trust, the IRB argues in a memorandum filed with the Federal Court. “Any adverse finding on an appointment can permanently breach the public’s trust in the IRB and erode public confidence in the administration of justice.”

One of the commission’s investigations was completed in June and found the appointment in question was not based on merit. The other 12 are ongoing.

One of the high-profile officials under investigation is the director general of the IRB’s immigration division, according to an affidavit filed by the agency’s executive director, Simon Coakeley.

On the IRB’s website, Susan Bibeau is identified as the division’s director general. She did not return messages Friday.

Among other things, the immigration division is handling the detention reviews of the Sri Lankan migrants who arrived by ship in British Columbia this summer.

“Any erroneous finding suggesting that the appointment was made by virtue of favouritism or was not based on merit would constitute irreparable harm to the integrity of the IRB and its reputation with the public,” Coakeley says.

The chair of the working group that’s setting up the IRB’s new refugee appeal division (RAD) is also under investigation for her appointment to an earlier position, Coakeley’s affidavit says.

The new division, which is still in the process of being established, will decide appeals of decisions made by the IRB’s refugee protection division.

The IRB is legally obliged to have the new division up and running by 2012. But that timetable could be imperilled by a “flawed process” that directs resources and attention toward the investigation of the working group chair, Coakeley says.

Any “incorrect or erroneous” findings, he warns, “could improperly cast a significant shadow over this work and damage the reputation of, and erode public confidence in, the IRB and the new RAD.”

A 2009 audit looked at 54 appointments made by the IRB between January 2006 and June 2009. Only 21 of those hires, it found, were based on documented merit and respected the guiding values of fairness, access, transparency and representativeness.

Merit and the guiding values were notably absent in the appointment of former political appointees to public service jobs within the IRB, the audit found. It said eight of nine of the former political appointees who got permanent public service jobs received preferential treatment.

The IRB employs 925 public servants and 118 political appointees, who make all decisions at its refugee protection and immigration appeals divisions.

The political appointees are chosen by cabinet and are exempt from the PSC’s hiring rules. But the board is often keen to hire them when their terms expire to capitalize on their experience and help deal with its mounting backlog of cases.

As of March 31, there was a backlog of 59,000 refugee claims and a further 11,000 immigration appeals.

Following the audit, the PSC began investigations into 13 of the appointments.

It issued a final report June 8 on one of them, which examined the hiring of a personal security assistant named Jamie Lyonnais.

It concluded that while favouritism didn’t play a role, his appointment was not made on the basis of merit. The PSC later directed the IRB to reassess Lyonnais within 60 days on each of the job’s required qualifications.

In July, the IRB filed an application asking the Federal Court to set aside the Lyonnais decision and refer the case back to the PSC. It argues the PSC “violated the duty of procedural fairness” by refusing to let the IRB make submissions before reaching its verdict.

The IRB also asked the court to prohibit the PSC from using the same “flawed procedural methodology” for the 12 ongoing investigations.

On Oct. 1, the IRB filed a motion asking the court to suspend the Lyonnais decision, as well as all ongoing PSC investigations, pending the outcome of the application for judicial review. That motion will be heard Oct. 26.

By denying the IRB the opportunity to make submissions prior to the publication of a decision, the PSC’s investigations are all using the same flawed methodology, the motion says.

As a result, it says, the PSC’s final report “is likely to include errors and omissions, which otherwise could easily be corrected.”

The cost to the IRB of these investigations is “very considerable and unrecoverable,” the board’s motion says. With only one investigation complete, the IRB has spent more than $75,000 to date, it says.

Neither the Public Service Commission nor the Immigration and Refugee Board was willing to comment when contacted because the case is before the courts.

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