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Terms of reference for the fairness commissioner

Statement of Purpose

1. ICBC is a publicly owned and customer driven organization. As such, it recognizes the value of having a process to independently review the fairness of its actions. To achieve this goal, the Fairness Commissioner will review and make recommendations with respect to unresolved customer complaints that relate to the fairness of the process leading to a decision or action, but without duplicating existing internal or external dispute resolution processes. An important component of a fairness review is that it be completed in a timely manner. Accordingly, the Fairness Commissioner's review should be thorough but straightforward enough that recommendations may be made without undue delay.

Scope

2. An "unresolved customer complaint" is:
  a. a complaint about the fairness of an ICBC decision, action or practice as it has been applied to a customer;
  b. made in writing (with the assistance of ICBC staff if necessary) by an ICBC customer, where "customer" includes those who are directly affected by an ICBC decision, act or failure to act in any of its lines of business, and in which the customer agrees to the terms set out in section 9 b) of these Terms of Reference; and
  c. not resolved to the customer's satisfaction after a reasonable effort by the customer to address their complaint through ICBC's internal complaint resolution processes including ICBC's Customer Relations department but does not include:
    i. complaints by suppliers, brokers or employees of ICBC that arise from their contract or employment with ICBC;
    ii. complaints or disputes that relate solely or primarily to the amount of a final payment, claim settlement or assessment of liability;
    iii. complaints concerning the disposition of a violation ticket issued by a peace officer employed by ICBC, or the conduct of a peace officer employed by ICBC;
    iv. complaints that relate to decisions made by or are at the discretion of the Board;
    v. a matter that is referred to a court, statutory tribunal, an arbitration; or that relates to a court decision; or a decision of a statutory tribunal or the result of an arbitration;
    vi. complaints concerning the advice or conduct of lawyers; and
    vii. matters that fall within the principal jurisdiction of statutory decision makers such as the Human Rights Tribunal.

Conduct of Review

3. Upon receiving an unresolved customer complaint for review, the Commissioner may do any of the following:
  a. Refer the matter to the appropriate department of ICBC with or without recommendations;
  b. Recommend that ICBC's Manager, Customer Relations, conduct an investigation;
  c. Facilitate a resolution of the complaints with the complainant and the appropriate ICBC personnel;
  d. Recommend that the complaint proceed to mediation or arbitration;
  e. Seek the assistance of the Executive or Board of Directors of ICBC;
  f. Conduct an investigation of the complaint;
  g. Group together complaints of a similar nature and conduct a single review of the issue or issues raised by such complaints; and
  h. With the consent of ICBC and the complainant, act as mediator with respect to the complaint, in which case the Commissioner may no longer continue to conduct an investigation or review or make any findings or recommendations with respect to the complaint.
4. If the Commissioner requires any documents or information from ICBC that the Commissioner considers might assist in the conduct of an investigation, ICBC will promptly make every reasonable effort to provide the required documents or information to the Commissioner, subject to the Freedom of Information and Protection of Privacy Act and any other law governing the disclosure of personal information.
5. Any party that may be adversely affected by an investigation or recommendation must be given timely notification and an adequate and appropriate opportunity to respond to any issues raised and any possible findings or recommendations before they are finalized or published. Without limiting the previous sentence, if the Commissioner intends to recommend a remedy that has not been suggested by the parties the Commissioner will give both parties the opportunity to respond to the proposed remedy before making any findings or recommendations.
6. If the Commissioner considers it appropriate, evidence may be taken from the complainant or a representative of ICBC under oath or affirmation, either verbally or in writing, but no person may be compelled to give such evidence.

Completion of Review

7. At any stage in the review of an unresolved customer complaint the Commissioner may:
  a. Recommend that an ICBC action or decision be reconsidered;
  b. Recommend that an exception be made to an ICBC policy or procedure, having regard to the impact that making such an exception may have on other customers;
  c. Recommend that an ICBC policy or procedure be studied or reviewed by the Board of Directors of ICBC, or that new policies or procedures be adopted to address customer needs;
  d. Make a report to the Executive or Board of Directors of ICBC with respect to the findings of an investigation; and
  e. Determine that no further action or investigation is required.
  If the Commissioner makes a report or recommendation the Commissioner must concurrently state in writing the reasons for the recommendation, including a description of the procedural unfairness that led to the recommendation or report. If ICBC declines to follow a recommendation it must state to the Commissioner, in writing, its reasons for doing so.
8. ICBC will designate a member of its senior executive to act as ICBC's liaison with the Commissioner. The Commissioner may bring any concerns with respect to the implementation of a recommendation to the attention of the executive liaison.

Confidentiality

9. Recognizing that any unresolved customer complaint could later become the subject of litigation, and that information or documents received in the course of reviewing an unresolved customer complaint should not lose any claim of privilege which may attach to them:
  a. the Commissioner, his/her staff and any individuals, including legal counsel, retained by the Commissioner to assist him/her in performing his/her duties will:
    i. Maintain the confidentiality of all information and documents provided to the Commissioner;
    ii. Not disclose to any person, including the other party, any information or documents provided to the Commissioner by ICBC or the complainant without the consent of the party who provided the information or document having been obtained in advance;
    iii. If appropriate, obtain a written agreement from ICBC or the complainant that any confidential information or documents shared with them will be kept in strict confidence and not disclosed to any other person unless required by law; and
    iv. Not refer to any information or documents in any correspondence, report or recommendations without the consent of the party who provided the information or document having been obtained in advance.
  b. ICBC agrees, and the complainant will agree when making the unresolved customer complaint, that they will not request that the Commissioner, his/her staff and any individuals, including legal counsel, retained by the Commissioner to assist him/her in performing his/her duties be compelled as a witness in court or in any proceedings of a judicial nature in respect of anything coming to the Commissioner's knowledge as a result of anything done pursuant to these Terms of Reference.

Reporting

10. The Commissioner shall prepare an annual report for the Board of Directors and shall deliver that report to the Governance Committee of the Board. The Commissioner shall appear before the Governance Committee to discuss the report and shall also appear before that Committee or the Board at any other time the Committee or the Board may request or the Commissioner considers necessary, with respect to:
  a. The activities of the Commissioner;
  b. The adequacy of ICBC's responses to the Commissioner's investigations and recommendations, including a discussion of the number of his/her recommendations that were not accepted by the Corporation and the explanations given by the Corporation for declining to adopt them; and
  c. Circumstances that the Commissioner believes require the Board's review of a specific policy or procedure.
11. After reporting to the Board and permitting the Board an opportunity to respond within a period of time that he/she considers reasonable, the Commissioner may, subject to Article 7 of these Terms of Reference, make a public report in respect of the matters set out in Article 10.