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Proceedings of the Standing Senate Committee on
National Finance

Issue 9 - Evidence - Meeting of April 8, 2008

OTTAWA, Tuesday, April 8, 2008

The Standing Senate Committee on National Finance met this day at 9:33 a.m. to examine the Estimates laid before Parliament for the fiscal year ending March 31, 2009. Topic: Implementation of the Federal Accountability Act

Senator Joseph A. Day (Chair) in the chair.


The Chair: Honourable senators, the committee's field of interest is government spending and operations, including reviewing the activities of officers of Parliament and those various individuals and groups who help parliamentarians hold the government to account. We do that through the estimates of expenditures and funds made available to officers of Parliament to perform their functions and through budget implementation acts and other matters referred to this committee by the Senate.

Today, we are continuing our examination of positions and offices created or modified as a result of the implementation of the Federal Accountability Act that received Royal Assent on December 12, 2006.

From the Office of the Public Sector Integrity Commissioner, we are pleased to welcome Commissioner Christiane Ouimet, Deputy Commissioner Wayne Watson, and Joe Friday, General Counsel.

On June 12, 2007, the Prime Minister of Canada announced the nomination of Ms. Ouimet as the new Public Sector Integrity Commissioner. This act is generally and colloquially referred to as ``whistle-blower legislation.'' At the time of her appointment, Ms. Ouimet served as the Associate Deputy Minister of Agriculture and Agri-food Canada. Throughout her 25-year career, Ms. Ouimet has gained considerable experience and expertise in the field of audit, regulatory affairs and enforcement.

We thank you very much for being here. We understand that you have a short presentation, following which we will go into a short question and answer period.


Ms. Christiane Ouimet, Commissioner, Office of the Public Sector Integrity Commissioner: Mr. Chairman, it is our pleasure to appear this morning before the Standing Senate Committee on National Finance. My colleagues and I will be pleased to answer any of your questions.

It has been almost a year since I first appeared before the full Senate committee. I was honoured to receive the confidence of Parliament. Please understand that we have been working hard to build this new institution and to fulfill the important and challenging mandate we have been given.

This morning, I would like to take you through my mandate, the approach I take to fulfilling that mandate, the establishment of my office and some discussion of our budget.


For those senators who were not at the Senate plenary session back in June, I would like to start by telling you who we are and why we were established. I always like to turn to the preamble of the legislation, which discusses important principles, such as the essential role of the federal public administration in Canadian democracy, and underscores the importance of public interest. We will be guided by the public interest as we implement the legislation. I like to describe our role as an instrument to enhance confidence in our public institutions through transparency and through legislation that has been adopted by Parliament.

To be more specific, under the act, my office is responsible for implementing a system of disclosure of wrongdoing and protecting those who come forward or those who are part of an investigation against reprisals. When wrongdoing is discovered, we have to decide whether an investigation should be launched. We inform the head of the relevant department, provide recommendations and report to Parliament.

The act specifically prohibits reprisals against public servants. That is the core of our mandate. Our jurisdiction extends to 400,000 public sector employees, and we can also receive complaints from the general public. Security agencies such as CSIS, CSE and the Armed Forces are excluded because they have their own internal systems.

I will elaborate briefly on the mandate to give you a clearer idea of how we intend to contribute to the enhancement of public confidence in our institution. The act defines ``wrongdoing'' specifically as a contravention of any act of Parliament or of a provincial legislature; the misuse of public funds or a public asset; gross mismanagement; an act or omission that creates substantial danger to life, health, safety and the environment; a serious breach of a code of conduct; and knowingly directing a person to commit any of those identified wrongdoings.

Under the act, I have discretion to decide on a case-by-case basis whether an investigation is warranted, but, as well, Parliament will ensure that there is no duplication. In fact, we have discretion to decide whether the matter should be more adequately dealt with through another mechanism under an act of Parliament, for example, if disclosure is not made in good faith.

We launch the investigation using the combined expertise and experience of my staff — careful judgment, legal analysis and sound investigative techniques — to come up with, at end of the day, the best resolution of the case, as is appropriate. The act specifically provides that investigations will be conducted as informally and expeditiously as possible, and principles of natural justice have to be respected. That is what will guide our behaviour in exercising our mandate.


A few words on protection from reprisal. The second aspect of my mandate, and one that is related but distinct from the disclosure process, is the protection of public servants who come forward to disclose wrongdoing, people sometimes known as whistleblowers. I believe this is an innovative and very important step on the part of Parliament.

Canada is a pioneer. There is no legislation anywhere else in the world similar to ours and which offers both a process for disclosure and protection from reprisals. This is an important feature, but, again, we act on the presumption of disclosure made in good faith. We have an exclusive mandate in a very specific area.

The act defines a reprisal as a disciplinary measure, demotion, termination of employment or anything that adversely affects employment or working conditions, or any threat to take any of these measures.

In some cases, the facts are very important because it is not always easy to find out what happened in a given situation. When a complaint is presented to us, we must decide whether an investigation is warranted. We have about 15 days to decide on the face of it whether there is enough evidence to begin an investigation.

The act provides us with the discretion to refuse to deal with a complaint when the complaint was made in bad faith or if it is beyond our jurisdiction.

Investigations are to be conducted as informally and as expeditiously as possible. I also have the authority to apply to the newly created tribunal, chaired by Mr. Pierre Blais. This new Public Servants Disclosure Protection Tribunal can issue an order for remedial or disciplinary actions.

In short, the mandate that has been given to the Office of the Commissioner is a powerful and important one, and its objective is to protect public servants who make honest disclosures of wrongdoing.


I would be remiss if I did not mention that I truly believe that at the core of the mandate is a preventative approach. I think my office is all about integrity and not just breaches of integrity. We will have a bias in favour of prevention over investigation.

In my first week in office, I sent a message to all parliamentarians indicating that I would consult broadly with respect to the people who are affected by the legislation. I am pleased to report that I have had over 70 bilateral meetings, and my office has had more than 80 group meetings with former chief executives, academics, union leaders and middle managers coast to coast to explain what our mandate is but as well what it is not. In the first few months there was a lot of confusion as to what the mandate was, and we wanted to ensure there was no duplication.

We have reached out to a very broad cross-section. The key message, everyone would agree, is that prevention is a shared responsibility and accountability. It must go hand in hand with the legislation that we are administering.

When I appeared before Committee of the Whole here in the Senate, I indicated that another priority would be alternative dispute resolution. We are still looking at how that could apply within the context of our investigation. There is specific provision for conciliation under the reprisal element. In the end, we want to find the best solution at the least cost and try to enhance, through those means, the reputation of public institutions.

Regarding the establishment of the office, I must confess that I was a bit surprised with respect to the magnitude of some of the challenges in creating an institution. A new organization would present a challenge for any government or any business, and Public Sector Integrity Canada was no exception. Because the act came into force April 16, the old administrative office had to process claims quickly, but I was involved to ensure that we had the necessary guidelines and that we interpreted the legislation. At the same time, I was recruiting staff, setting up the office and putting in basic systems. I personally interviewed all of the former and existing staff because the calibre of the people, their expertise and what they bring to the job was absolutely critical to the mandate given to us.

A unique challenge is that we are operating in a brand new field of law and policy with many unknowns. Each decision has the potential of setting precedent. At the same time, the act prescribes very short deadlines.

I was also focused on governance and accountability and was conscious of the unique challenges facing small organizations, given that they have the same reporting obligations as large organizations. I quickly turned to shared services to provide the expertise and support that we needed, such as human resources, financial controls and the management of information.

I am pleased to report that we have created a new organization, staffed it, defined our mission and values, put management procedures in place and opened our door for business in less than four months while ensuring that no cases went unattended. I have also instituted a procedure whereby I am personally informed as soon as we have an allegation of reprisal. Whether or not we decide to pursue an investigation, given the importance of the issue, I want to look at it personally, along with my deputy commissioner and my general counsel.


I have established who we are in general, but especially who we are not.

As the newest agent of Parliament, I would now like to turn to the main estimates. Our budget is $6.5 million. At this stage, we have enough resources to meet demand. I believe that we will determine exactly what our needs are over the coming years. I intend to conduct an analysis of the trends that I observed, to review our needs, to report on our speed of intervention, to review our capacity and to present a more accurate picture regarding the resources we will need after three years of operation.

In the meantime, I have had the good fortune of recruiting very high-calibre colleagues, and we are here to ensure that our mandate is carried out to reflect the expectations of Parliament and Canadians.


It has been an honour and privilege to appear before you today. I have been given an important responsibility by Parliament and take it very seriously. I bring to the position not only my many years of experience as a public servant but, as well, a deep and abiding respect for the public service and for Parliament. I consider it an honour to serve as Canada's first Public Sector Integrity Commissioner.

Mr. Chair, I welcome any questions you or the committee members may have.

The Chair: Thank you very much, Madam Commissioner. We appreciate you and your team being here and thank you for your introductory remarks.

You mentioned the date of April 16.

Ms. Ouimet: That is the date the legislation came into place. I appeared before Parliament in June but came into the position on August 6.

The Chair: You were appointed August 6, 2007?

Ms. Ouimet: That is correct.

The Chair: The legislation came into force on April 16, 2007; is that correct?

Ms. Ouimet: That is correct.

The Chair: The legislation was passed and received Royal Assent on December 12, 2006; is that correct?

Ms. Ouimet: That is correct, but the coming into force of that specific piece of legislation was in April.

The Chair: You talked in terms of building up the department. Was there work done from April 16, 2007, until your appointment with respect to building up a department?

Ms. Ouimet: A small administrative office operated under a policy that was part of the core public service. It was a five-year experience; however, there were major distinctions with respect to the role. It was administrative; it was a policy and did not have the powers that have been entrusted to us. It did not operate independently and was not an agent of Parliament, and it did not have the same powers or the possibility of protecting whistle-blowers, which is very unique in this legislation.

The Chair: My recollection is that there was legislation in existence but that it was never proclaimed prior to Bill C-2 and the creation of the new legislation. Was there any work done in anticipation of that legislation being proclaimed, or is everything quite new, other than what you have described?

Ms. Ouimet: There was a fair bit of work being done, but given that it was a very small unit and did not have resources, a budget or legislative power, when I arrived, we really needed to develop the procedure. I took the leadership. However, under the old policy, transition provisions provided bridging for specific cases, but this was a minority. Even before I took office in August, I did ask those questions. In particular, I asked staff to ensure that we had the necessary expertise. As well, I charged the former unit to start developing procedural guidelines and training sessions on a very complex piece of legislation. There are 54 pages and a web of provisions that must be read very carefully.

The Chair: I have a number of other points of clarification, but they may come out in senators' questions.

Senator Eggleton: Thank you very much for appearing this morning. You have a very important position, as you have indicated. We wish you well in carrying it out. I think it will help to instil a greater confidence in our public service as well as the confidence of the individuals who work in the service.

You said you opened doors about four months ago. Can you tell me about your experiences to this point in time? Has there been a flood of complaints coming in or have they been trickling in? How would you characterize the complaints? Have any of them surprised you to this point?

Ms. Ouimet: First, as a matter of course, after 100 days in operation, the administrative office was open. I quickly realized that there is a lot of confusion as to who we are. We have received more than 200 inquires at various levels over the last year. A few cases require more probing, and we are in the process of terminating those investigations. We will then be able to report in the form of our annual report.

The vast majority of cases fall outside of our mandate and jurisdiction. For that reason, although it does not fall squarely within our mandate, I took it upon myself early on to talk to other agents of Parliament, including the Auditor General, to ensure that if a matter falls within her expertise or the staffing tribunal or the Public Service Staff Relations Board that there be a referral to those organizations.

In addition, the source of the confusion occasionally deals with private interest versus public interest. While some matters that have been raised are quite serious, there is another body that has similar expertise, that being the Canadian Human Rights Commission. It might be a venue as well.

We need to provide more outreach, education and communication. We are there for very serious cases. We have a fair bit of discretion as to what falls within our mandate but, at the end of the day, I want to serve Parliament. I want to protect the identity of the ``disclosure'' and find a solution to whatever the problem may be, but there is a lot of confusion at this stage.

Senator Eggleton: You mentioned 200 inquiries. Are they inquires relative to specific cases that people want examined, or are they just inquires about what you do?

Ms. Ouimet: It is a combination. The vast majority deals with specific cases, but of a private matter.

Senator Eggleton: Do you have any numbers as to how this breaks down?

Ms. Ouimet: The breakdown is general at this point in time, but the vast majority deals with private matters such as staffing, classification issues and human rights issues that do not fall within the mandate. We would be happy to provide more of a breakdown. We are just completing the analysis now in anticipation of our annual report.

Senator Eggleton: Let me ask you about the challenges faced by individuals who fit into the category of whistle- blower. Much of the discussion about this legislation has been on that very issue.

Of course, the concern about retaliation has been expressed many times. If retaliation is overt, you can probably find that, but some of it is not overt. Some of it could be over a period of time, making a person's life miserable. How will you overcome that? Do you think there is much fear in the public service with respect to the question of retaliation?

Ms. Ouimet: These are very valid observations. In fact, I had the privilege of consulting academics who have studied the field. I have also completed research into comparative systems. Once again, Canada is in a leadership role. There is not a lot by way of statistics other than very famous cases, such as the Enron case. The outcome for whistle-blowers has been quite abysmal, even though they might have been vindicated.

Some of the tools given to us in the act are incredibly important, such as the confidentiality of the process and protection of not only the whistle-blower but also the actual process. One of the key messages I convey when I talk to executives or deputy heads, when we knock at the door, the important thing is to have quick collaboration in order to get to the facts. I will quote a person who has been working with us and is the former President of the Human Rights Commission. In fact, she spent a few days with us looking at alternative dispute resolution techniques: What we are is a joint quest for the truth. We want to ensure that we have the basic facts and a basic approach in our efforts to resolve a matter. Based on our short experience, there is often miscommunication. People do not understand what the problem is, and often we are able to clarify this in an informal way.

Coming back to the core issue of protecting the complainant, we will use whatever means available to do just that and to ensure that their identity is protected.

On the other hand, there is a balancing of natural justice principles as well. Under the act, as soon as we get a complaint, we need to advise anyone whose conduct or reputation has been called into question. This is also part of the answer.

I will not say that the challenges will be easy, but I have had the opportunity of heading, at the highest level of the public service, the Immigration and Refugee Board post-September 11. I was a decision-maker for competitions and for releases. I ran the commercial fraud and drug interdiction programs at Customs. I think that a hybrid of all those techniques need to be used and that being able to use a confidential process is key to the success of the legislation.


Senator Chaput: Congratulations on your appointment and on the work you have already accomplished during these first few months. I am really impressed.

If I understand correctly, you are governed by the act, and based on the legislation, you have developed your guidelines. In these guidelines, you have defined what is an eligible complaint and one which is not. In order to understand the difference between these two things, can you give us an example of a complaint which does not fall within your mandate, but which you can direct elsewhere, as well as an example of a complaint which falls within your mandate?

Ms. Ouimet: I will give you two extreme examples. I would like to point out that these are not actual cases we are working on.

A harassment complaint is not eligible. Indeed, this type of situation is unacceptable, but does not fall within our mandate. Rather, it should be treated by a body like the Human Rights Commission.

Another example would be official languages, which is also not part of our mandate. Again, there are powers of investigation, and administrative tribunals have developed expertise in certain areas to deal with cases quickly. We do not want to replicate the work done by administrative tribunals. We really are there to deal with exceptional situations.

Further, do not forget that anyone can knock at our door, but they can also knock at the door of their immediate supervisor or the senior agent appointed by each department. Each department or organization has its own internal process.

That being said, non-eligible complaints are private, rather than public, in nature.

As for examples which concern the public interest, I will simply refer to the major issues which make headlines, which parliamentary committees have examined and which gave rise to this legislation.

Without saying exactly what they are, these cases certainly made headlines and involved situations in which we not only want to intervene, but which we really want to prevent. And that is why I spoke of the prevention role my office plays.

Senator Chaput: If someone wants to make a complaint, can that be done in either official language, English or French? At the disclosure stage, can a person be served in the language of their choice?

Are services available in both official languages from the beginning to the end of the process?

Ms. Ouimet: Absolutely. I want to assure you, senator, that, indeed, my entire team is perfectly bilingual. I would like to add that, as far as services in both official languages are concerned, it is the first time that we can offer legal opinions, and that is unique under our legislation.

We do not offer legal representation, but it is nevertheless a very specific aspect of the legislation. A certain amount of money has been determined, and I have the authority to double that amount. It is there to help the whistle-blowers, to inform them of their obligations, our obligation to protect, and to familiarize them with the process.


Senator Stratton: It is good to see you here.

I want to go back to specific cases on which we had witnesses before this committee. Some were quite trying to hear and to listen to, and I suppose the legislation is supposed to deal with this kind of thing in the future. Without going into specifics about who those people were, has anything evolved with respect to that, or are those cases not in your jurisdiction because they were high profile in the media? Where are they now?

Ms. Ouimet: As a general statement regarding transitional provisions in the act, there was a specific time frame with respect to cases that belonged to the administrative office that could be carried through or grandfathered under the legislation. That timeline has been exhausted, so there is no further grandfathering of cases. However, all of the cases that retained the attention of the media happened before the legislation came into force, so we have no mandate with respect to them. One case in the public domain has been referred back to our office for decision. We are currently completing that case in accordance with the directions of the Federal Court.

Senator Stratton: Who would we talk to in order to find out the status of the cases that were not within your mandate?

Ms. Ouimet: I understand that some of those cases might be before federal courts. In several other cases, there might even be civil issues. I am focused on the mandate that I have been entrusted with in the legislation. I keep a watching brief of those cases for lessons learned because there are things that we can learn, but in general I cannot really comment because they are not part of our jurisdiction.

Senator Stratton: I understand that, but I am trying to determine where we would go to find out the status of each case. How do we obtain that information?

Ms. Ouimet: The responsible department would have that information.

Senator Stratton: We have to go to the individual departments with respect to that.

Ms. Ouimet: That would be my suggestion, senator.

Senator Di Nino: Congratulations on your new appointment and good luck. It will not be an easy task, as you said.

I, too, have a question on the retroactivity of the bill. Did I understand you to say that the bill gives you authority to deal with new cases rather than cases that have been dealt with in the past? What happens to those that cases that were not completed or were in transition? Could you clarify?

Ms. Ouimet: The legislation provided for a very brief transition period. With respect to past cases, other venues were available at the time, and I understand that is the route they took. Of course, we have an obligation to examine the admissibility of different circumstances and different facts of any case that comes our way.

Senator Di Nino: They would be reintroduced, and then you would deal with them.

Ms. Ouimet: Under the specific legislation and provisions, if another body or process is already dealing with a case, we must refuse to intervene.

Senator Di Nino: My second question deals with the other side of the coin, so to speak. You have talked about protecting the complainant, and rightly so. That is very important. However, some of these issues are very serious and involve accusations that deal with the lives of people against whom the complaints have been made. What is your mandate in that area? I am not talking about frivolous complaints because I am sure you can deal with those right away, but complaints that may be more malicious in substance. Can you give us your thoughts?

Ms. Ouimet: This is an important point. Under the act, whether it is the complainant or the person whose conduct is called into question, there is a very clear prohibition that no person, in the disclosure of wrongdoing or in the course of any investigation, shall knowingly make a false or misleading statement, either orally or in writing, to a supervisor, a senior officer, the commissioner or any person on behalf of these individuals. Other provisions talk about the offence of wilful obstruction.

In the end, the act is very detailed in protecting all the parties to the investigation. The process is confidential for all involved for the very reason that you just raised. We are conscious of the impact that any of our cases could have on institutions, on individuals and on the perception of Canadians. That is why I referred to the preamble of the legislation talking about democracy and the importance of our institution. That is why the expertise and the know-how of the people who surround me, as well as my own involvement, will be critical to examining the evidence on the face of it and making the proper decisions.

Senator Di Nino: Do you believe, then, that the act contains the appropriate provisions for you and your staff to protect all concerned, such as the complainant and those people against whom the complaints are being made? Do you think you have sufficient authority under the act to do that?

Ms. Ouimet: As outlined in Part II of the Inquiries Act, I also have the power to subpoena witnesses and to call for the production of documents. I will not hesitate to use those powers, again for the protection of all and to get to the truth as soon as possible. The faster one can get to the facts, the faster one can resolve a case. The prime recipient of my recommendation remains the chief executive of any organization of the public sector because this is where all the people continue to operate and deliver services. We want to come to the resolution of those problems as quickly as possible, and we will use the full extent of the powers of the act to do that.

Senator Di Nino: The two-week period you talked about appears to be very short. Are you telling us that you will have to acknowledge receipt or take some action? What do you need to do in that two-week period to ensure that the complaint does not fall off the table?

Ms. Ouimet: The senator is right. During the five-year review, we have already collected some of the problems or challenges of the legislation, and that certainly would be one. However, to be fair and to do justice to any complaint, the clock starts ticking once we have enough evidence to make a determination. Essentially, after 15 days, we need to decide whether to finish the preliminary inquiry and launch a formal investigation by giving the proper notification. That is the 15-day window.

As I have said, at this point in time there is a lot of confusion as to what constitutes a reprisal. It is often confused with a private matter or private interest. However, in the meantime, we examine each case carefully and quickly, of course, because 15 days go by quickly.

Senator Di Nino: Did you say that is an area that you may want to revisit when the legislation is revised?

Ms. Ouimet: Indeed, yes.

Senator Murray: You talk about natural justice, Ms. Ouimet. When I hear you report that you have in your tool kit such matters as Part II of the Inquiries Act, I cannot help but wonder what procedural protections exist for the putative targets of some of the complaints or investigations that you will be conducting.

Ms. Ouimet: My hope is that it will be a very rare occasion that we have to use the full powers of Part II of the Inquiries Act. These are exceptional powers, just as we exercise search and seizure in other legislation. Again, it is with great care that we will try to obtain the collaboration, first and foremost, of anyone involved directly or indirectly in an allegation. Therefore, we will be very careful.

I should add that Part II of the Inquiries Act does find itself in a lot of other legislation. Other agents of Parliament also have it; in fact, other jurisdictions across Canada have it. Again, it is very rare. I was in New Brunswick and Nova Scotia last week. They have equivalent powers and said they had never used them.

Senator Murray: You indicated that you would not hesitate to use the full powers available to you under the act. I do not want to be seen to be coming down too strongly on the side of management, but one must spare a thought for the people who, as I say, are the putative targets of complaints and investigations. One would want to assure oneself that procedural fairness and natural justice will be rigorously protected in these matters.

Ms. Ouimet: If I may reassure the senator, that is absolutely our intention.

Senator Murray: Mr. Chair, I have some questions to which I should know the answers. I say that right off the top, and I hope colleagues and the witnesses will indulge me.

You mention, Ms. Ouimet, that such agencies as CSIS, the Communications Security Establishment and the Canadian Forces do not fall within your jurisdiction, but the act does provide, you say, that they must have their own systems in place for managing disclosures. Do you happen to know whether these agencies have now put in place their own systems for managing disclosures?

Ms. Ouimet: If I may correct the record, there is no provision in the act. These agencies are excluded with respect to the internal processes. I know it is part of their obligations. I was not privy to the policy discussions that took place in deciding to exclude them, but it was reported back to me that they would have their own internal systems and that they were best placed given that national security is so sensitive.

Under the act, there may be situations that raise issues of national security. I can designate no more than four investigators who could be entrusted with those sorts of files, so there may be the occasional time — it is difficult to speculate — when we would run into issues that would cross those organizations. However, at this point in time, my understanding is that they have their own internal systems.

Senator Murray: Is the RCMP subject to your office?

Ms. Ouimet: Yes, it is.

Senator Murray: What happens if an employee of the Senate or the House of Commons wishes to make a complaint? Are we covered?

Ms. Ouimet: No, you are not.

Senator Murray: We have exempted ourselves. We, senators and MPs, have conveniently exempted ourselves from the ambit of this act.

Ms. Ouimet: Mary Dawson, the Conflict of Interest and Ethics Commissioner of the House of Commons, and Jean Fournier, the Senate Ethics Officer, have jurisdiction.

Senator Murray: Do you think the positions are comparable in this sense?

Ms. Ouimet: No, they are not comparable with respect to whistle-blowing. You are right, senator.

Senator Murray: Are you subject to the Access to Information Act and to the Privacy Act?

Ms. Ouimet: The information is not accessible through the Access to Information Act. The investigations that we conduct are excluded, hence the importance of keeping the process confidential.

Senator Murray: Is that the case for the Privacy Act as well?

Ms. Ouimet: It is for the Privacy Act as well.

Senator Murray: You are not specifically excluded as an agency from those acts. You are not otherwise excluded from the operation of those acts.

Ms. Ouimet: No, not as an agency, but the contents of our investigations are protected.

Senator Murray: I presume that instructions coming from a minister of the Crown or a minister's staff can be complained of by a public servant.

Ms. Ouimet: It does not fall under the jurisdiction. The mandate has to do with 400,000 employees, the institutions, the core public service. With respect to the operation of the public service and the wrongdoing as defined, anyone can come to our door, including private citizens. Anybody can come and present an allegation or a disclosure of wrongdoing with respect to the operation of the public sector as a whole.

Senator Murray: Does that include an action by a minister of the Crown or a minister's staff that someone wishes to complain of?

Ms. Ouimet: No, senator. They do not fall under the definition of public servant.

Senator Murray: I take it that you will make an annual report to the Speakers of the two Houses. When is your first report due, or has it been tabled already?

Ms. Ouimet: No, we are looking forward to tabling our first report. We are finalizing it as we speak. It must be tabled within three months of April 1, and we would be absolutely grateful to be able to table it in the next few weeks.

Senator Murray: Will that be done through the Speakers?

Ms. Ouimet: That is correct, senator.

Senator Murray: With respect to your budget and financial requirements, when you say that they will depend on the number of requests for information, the number of disclosures, the number of complaints of reprisal and the number of investigations you launch, I presume, when your report for the fiscal year just ended is tabled, that this information will be there in detail?

Ms. Ouimet: You are absolutely right. Under the act, there are specific requirements about what must be contained in the annual report, all of those numbers. I meant that we do not know from a prospective perspective what the workload will be, but the information will be there.

Senator Murray: To whom do you present your budget? Is it to the President of the Treasury Board?

Ms. Ouimet: The Report on Plans and Priorities has been tabled through the President of the Treasury Board. With respect to the annual report, it will be tabled directly.

Having met with the Speaker of the House of Commons, I understand there is a panel that regroups agents of Parliament and looks at budget requirements. I have not had the necessity to appear before that panel because the organization is brand new. We are ramping up and building capacity. As I indicated earlier, we do have enough resources to deal with the demand, and of course the future will tell.

Last but not least, there are internal systems that exist within each organization. We do not capture that information. The agency of the public service has the responsibility to collect that information from all the departments and table a separate report to that effect.

Senator Murray: I know you report to Parliament, but there is not a minister to whom you relate on an ongoing basis.

Ms. Ouimet: Only on an exceptional basis. The President of the Treasury Board, for instance, signed a delegation instrument that in turn I delegated to my deputy commissioner. Other than that, just like the Auditor General is part of a portfolio, so is official languages; but it is limited because, as an agent of Parliament, I do not report to a minister.

The Chair: That area of questioning is important to this committee. We always look toward the issue of independence. Perhaps we will get back to that later on in this hearing. We thank you for your answers thus far.


Senator Ringuette: How many full-time permanent employees have you hired to begin your operations?

Ms. Ouimet: Twenty-two, for now.

Senator Ringuette: How many part-time employees?

Ms. Ouimet: None part-time. We have one person working four days a week, but not on a part-time basis.

Senator Ringuette: Temporary employees?

Ms. Ouimet: Again, none for the time being.

Senator Ringuette: How many of those 22 positions were posted throughout the Public Service Commission?

Ms. Ouimet: I would say at least 60 per cent. There were already competitions under way before I was appointed. I therefore participated in the final analysis of a number of competitions, namely all executive positions, including that of the Director General, Investigations, which was filled by way of a competition. Mr. Watson came to us through a lateral transfer from the office of another officer of Parliament, the Office of the Privacy Commissioner, and many people are now here on secondment. We are creating stability within the organization. There were selection processes and interviews for all people who were recruited. We still have some positions to fill. It was very important to find people quickly.

I began my career at the Public Service Commission as the chair of the appeals committee. We do our utmost to respect the merit principle and training criteria as set out in the act. Since this is new legislation, no one had jurisdiction over its implementation. There was but a small group of employees. I plan to finalize the organizational chart and classifications in the coming weeks because they did not accurately reflect the scope of the work and, lastly, issue all the notices needed whether following a reclassification or staffing action. I intend on doing this in the weeks and months ahead using a somewhat innovative model, which is practical, realistic and based on the merit principle.

Senator Ringuette: With regard to complaints, you said that you had received approximately 200 calls to date. How many of those calls warranted an investigation and how many were dismissed?

Ms. Ouimet: As I indicated, the vast majority of complaints were not within our jurisdiction; they were not part of our mandate. Given the high level of confusion, we will increase investments in information, education and communication. This will be a priority throughout my tenure. Approximately 80 cases required more in-depth consideration, that is they were brought to another level, and perhaps half a dozen cases are pending, some aspects of which are being finalized. Some cases are very complex.

When we receive a case from the Federal Court with specific directives, we have no choice but to investigate; we have had two people working full-time especially when the Federal Court intervened. All efforts are made and resources used to ensure that we comply with the new legislation and are on the right track. Each case might represent a significant precedent and create expectations as to what we can do.

Senator Ringuette: I am surprised, you said that you had to deal with two cases from the Federal Court?

Ms. Ouimet: Yes, that was under the former system, using the previous policy. Those cases made the headlines.

Senator Ringuette: You mentioned that you receive complaints from people within the public service as well as from the public. What would the proportions have been up until now?

Ms. Ouimet: It is difficult to give you an exact percentage because we are still completing our analysis. We will have a little more information in the next few weeks, but once again, there will be some confusion about the way we will be describing some of these private interests. Of the 200 complaints, a number were more general in nature — people wanted explanations. Other complaints had to do with situations that had nothing to do with our mandate. We received the latest data just a few days ago.

Senator Ringuette: Will the data and your analysis give you a regional breakdown of the complaints?

Ms. Ouimet: We can do that, but there again, most are at head office. However, this is a valid point, and we will look into this as well.

Senator Ringuette: It would be good to be able to make some comparisons. As we know, 80 per cent of the public service is located in the national capital region, so it would be interesting to see whether the figures remain the same.

Ms. Ouimet: That is an excellent suggestion, and it comes at a very good time, because we are in the process of preparing our annual report.


Senator Nancy Ruth: I am interested in the alternative dispute mechanism and its staffing. Because I am a feminist, I believe the public is private and the public is private. For 25 years, this is something that has been a currency in the economy of ideas and law making. I raise this balance that you have to deal with. When you are choosing staff to deal with alternative dispute mechanisms, how do issues like gender and race come into it?

Ms. Ouimet: I was privileged to recruit Joseph Friday from the Department of Justice, one the top experts in alternative dispute resolution. I was able to bring him in on a secondment because I have full independence from the rest of the public sector. I wanted to get the best person possible, and he accepted to come to us on a lateral transfer. He is an expert in the field, and I would turn to him so that he can share with you his many years of experience.

I have been a strong proponent of alternative dispute resolution, or ADR, in whichever department I have worked in, including the Immigration and Refugee Board and the Public Service Staffing Tribunal. I will let Mr. Friday take it from here.

Joe Friday, General Counsel, Office of the Public Sector Integrity Commissioner: One of the guiding principles in setting up and maintaining an effective ADR system is to recognize that non-litigious processes of resolving disputes or conflicts in which the parties themselves play an important and key role are more likely to result in faster and more effective decision-making and in solutions that are more durable in that the parties have played a role themselves in the settlement of the conflict or the dispute.

Also, the role of a neutral third party in any dispute resolution process is key in ensuring that the people who are assisting the parties in arriving at a settlement are doing so in a way that reflects the needs and interests of the parties and also the power imbalances that may exist in any relationship between parties to a conflict.

From my perspective, the guiding principles would be to ensure that people involved in ADR processes are indeed experienced and well versed in both theory and practice in order to work together to achieve these very laudable goals.

Ms. Ouimet: I will add that in my previous incarnations, I have always worked closely with the unions. I have always been involved in employment equity issues. I was more or less a champion in many capacities, so I am sensitive to those issues. In looking at the means we use to conduct our investigations, we need to be cognizant of ADR mechanisms.

Senator Nancy Ruth: How many staff will you employ in ADR? What kinds of situations lend themselves to using ADR as opposed to the more regular process of litigation?

Ms. Ouimet: I conducted a two-day ADR training session with every staff member who is involved in investigations either directly or indirectly. We held that training session before Christmas. We had some of the leading experts appear in addition to Mr. Friday.

ADR is not only a mechanism; it is an approach to an issue. In particular, it makes sense to use it under the disclosure regime.

With regard to reprisals, Parliament has already provided for mediation. It appears in the act. In fact, the investigator comes forward with a recommendation. He can recommend at any point in time that we assign a conciliator. In addition, we can also apply to the tribunal. There is that separate process.

The way I read the legislation, you have to look at the disclosure process as a whole with respect to what our role is in the definition of wrongdoing, when we cannot intervene and when we have the discretion to do so.

At the discretionary stage, if we can resolve the problem and pinpoint a solution to the satisfaction of the complainant and the institution, I think we would be well served. This would also counter the concern that Senator Murray had earlier about using the full force of Part II of the Inquiries Act. This is kind of the balancing measure of making sure that we explore all avenues under the legislation to bring resolution to the problem, and ADR is a very important means of doing so.

Senator Nancy Ruth: You used the pronoun ``he'' perhaps by mistake when referring to these mediators. Can you assure me that diversity will be a component of who you hire?

Ms. Ouimet: I apologize for that. It is a gender hiccup.

Senator Nancy Ruth: Many years ago, in the early 1980s, I was part of a litigation group called LEAF that regularly went to the Supreme Court of Canada to litigate women's equality rights. When we commenced LEAF, our strategy was to take the easy cases that would not be too provocative to the court. We did this to build a reputation and so that people would trust us and so employees, et cetera, would come forward.

I am not suggesting that this is a strategy you should advocate, but it is difficult to sell a new institution to hundreds of thousands of people and for them to trust you to come forward. That is what we did, and it worked for us. What are you doing?

Ms. Ouimet: That is a very good question. I have to say that in conducting my consultations the following question arose: ``Why should we trust the system? Will your team have the credibility to really lead the investigations?''

The answer that I would provide is based on the calibre of my team. I should mention that my deputy commissioner has spent more than 31 years with the RCMP, so he is well versed in investigative techniques. Of course, I just mentioned the qualifications of Mr. Friday. I could go on with the rest of the team.

I can certainly say that the positions I had in the public sector that involved quasi-judicial or criminal processes absolutely required the team to do the work properly; hence, the importance of staffing and getting the right people. The challenge will be in interpreting the legislation in accordance with the public interest but also with common sense as to what Parliament intended, being very conscious about the reputation of our institution and doing the right thing. This is where we will have to use all the flexibility of the act.

In the end, the commitment on behalf of myself and my team is such that we are very conscious of the importance and sensitivity of our role. I cannot commit that we will be as strategic as you are because we have to take cases as they come. We have the obligation to pursue every single one within the context of the legislation, and we will do this. Again, we will make sure that there is no duplication and we will get the result that Parliament intended. That is our commitment to you.

The Chair: I have two or three other points of clarification, Ms. Ouimet.

An allegation of wrongdoing by a public servant triggers an investigation by you. Let us suppose that the public servant does not come to you but that there is an anonymous release to the media, which seems to be a common thing for whistle-blowers to do. Does that disqualify them from the process, or can you initiate an investigation based on information you receive other than in the way you describe here of a written or oral allegation of wrongdoing?

Ms. Ouimet: We have had similar cases, and the deputy commissioner handled those on my behalf.

Technically, the legislation does not allow us to deal with anonymous complaints for the reason that you cannot verify good faith, which is critical to the process. However, there is a moral obligation for us to make an offer to the organization where the complaint and allegation originates and to share with the chief executive, who has the prime responsibility and would take the decision to investigate the case or not and take it upon himself or herself to take the appropriate action. This falls outside the legislation and the mandate.

The Chair: If a deputy minister came to you and asked you to investigate this allegation that appeared in the newspapers, would you provide resources to help in that regard?

Ms. Ouimet: That is a very interesting question. In fact, I have to tell the committee that some chief executives have approached us about that possibility. The challenge, of course, is to make sure that we are seen as a neutral, independent organization. The legislation does not preclude chief executives from coming to us. Any Canadian, regardless of their position, can come to us with respect to a complaint.

I would like to make an important distinction: We are not an ombudsman. We are an independent, neutral party reporting directly to Parliament and balancing important rights and obligations. At all times, we must be seen as absolutely impartial and independent. There is no specific provision for anyone coming to knock at our door, including senators.

The Chair: When Bill C-2, which included the whistle-blower legislation that you are now operating under, was studied by the Senate, we had a good number of recommendations for changes. You have indicated that you will do a three-year review, and then there is a mandated five-year review. Have you in mind those proposed amendments that were made by many of us on this committee and the Senate committee three years ago when that bill was passed?

Ms. Ouimet: If I may clarify, the three-year review has to do more with my resources and capacity. The minister can call the five-year review under the legislation, and we intend to be part and parcel to this very important review. We will have used the act and will know where the gaps are, and we will be more than happy to make recommendations. Our prime focus will be on our experience with the legislation. However, next year, we are already interested in looking at other international models. At this point in time, we are the leader in the field.

Earlier than three years, it is difficult to have the credibility to talk about, for example, systemic issues, and the act provides for that flexibility. On a yearly basis, we will try to look at trends, certainly with respect to regional trends as Senator Chaput has indicated. We will continuously review what we have observed. This will be part of our annual report.

This past year was quite demanding in just setting up the institution and ensuring that we had high-calibre, rigorous processes, the right interpretation and certainly the right team in place. We commit to do that up to the five-year review.

The Chair: Let me refresh your memory in terms of what the Senate recommended. We were concerned about the limitation period of 60 days with respect to bringing forward a reprisal complaint. We thought that was too tight. We talked about reverse onus in reprisals. Once you can establish that something has happened to a person who was a whistle-blower, then something is going on here. We suggested a reverse onus and that the employer should then demonstrate that there was not a reprisal. We talked about the $1,500 for legal fees as being woefully inadequate. I do not recall all the recommendations, but those are the ones that are floating around in my head. Are you conscious of those? When you review your operations to determine how they are working in practice, will you keep those recommendations in mind so that you can say, yes, it was a good idea, or, no, it was not, for this reason?

Ms. Ouimet: Early in my mandate, I met with the Speakers of the two Houses, one of which was the Speaker of the Senate, who was heavily involved with some of the bills. I also looked at various recommendations to a number of bills and the last minute changes to Bill C-2. For example, a proposal with respect to frivolous and vexatious proceedings was removed. There was also the onus of proof. I recall some of the provisions, including ``machinery'' options that were on the table at the time. I even spoke with some of the heads of those organizations to get their views so as to understand the philosophy and the objective of Parliament. The history is useful.

I said that I would focus first and foremost on the actual implementation of the act so as to report very early on — before five years — as to the challenges. Overall, it is a very complete piece of legislation. I will be in the hands of Parliament in five years as to what they decide based on our findings, facts and trends analysis. I will keep in mind some of the observations you made today and those that have been made in the course of the preparation of this bill.

The Chair: Could you refresh my memory on the five-year review? Is that automatically triggered in the legislation?

Ms. Ouimet: The minister responsible for the agency of the public service has the obligation, yes.

Senator Stratton: Treasury Board?

Ms. Ouimet: Yes, you are right, it is Treasury Board.

The Chair: They have the obligation to call you?

Ms. Ouimet: Yes. The minister has a specific responsibility to educate and communicate through the agency. The agency also has a prime responsibility to report on the internal systems and the findings by all of the organizations. The agency, although it functions completely at arm's length from us, has an important role, including the value statement and the code of conduct. Whether there will be a new code of conduct needs to be negotiated with important parties such as the unions. I understand there has been some postponement. In the meantime, codes of conduct exist in virtually all the organizations across the public service, and that is what we will use as our tool.

The Chair: In your remarks earlier, you said that the minister had the obligation to have an independent review. That is not a parliamentary review, is it?

Ms. Ouimet: It is parliamentary. I misspoke; I apologize.

The Chair: It is a parliamentary review?

Ms. Ouimet: It is independent. It is my understanding that it is a parliamentary review. I stand to be corrected, as Mr. Friday pointed out.

The Chair: Mr. Friday, your interpretation would be there will be a review by someone other than parliamentarians?

Mr. Friday: The legislation provides that five years after this section comes into force, the minister must cause to be conducted an independent review of this act and its administration and operation and must cause a report on the review to be laid before each House of Parliament.

The Chair: I suppose some could argue that an independent review could be done by one committee of Parliament or another, but normally a parliamentary review would be specifically indicated as a review by Parliament. The fact that it does not say that is probably an indication that it would be by some other independent body. Are you in agreement with me on that, Mr. Friday?

Mr. Friday: Yes, the legislation refers to an independent review.

The Chair: My final area of questioning is with respect to points raised by my colleagues on the issue of independence. In studying officers and agents of Parliament, this committee is always concerned about you being sufficiently independent to perform the task given to you and to advise parliamentarians of wrongdoings that you find and avenues where things should be corrected. Are you satisfied that you have a level of independence that provides you with the ability to do that without interference from the executive?

Ms. Ouimet: Absolutely, Mr. Chair. I consider independence to be absolutely core to my being able to implement the legislation — not only within the letter but within the spirit of what Parliament intended. This does not mean that I will operate in isolation regarding the education and prevention component of my mandate. However, with respect to the conduct of the investigations, I can assure you that we have ample and full independence, and our report will be directly to Parliament.

The Chair: The Auditor General has raised concerns in terms of budget, as has Ms. Barrados of the Public Service Commission. You indicate that the budget you are working with had been fixed for you, but you have been assured that your budget in the future will be reviewed by a committee. Can you tell us which committee?

Ms. Ouimet: I have a close relationship with other agents of Parliament. I am part of a group that meets to discuss how policies impact the operation of agents of Parliament. There is no pressure on the budget issue at this point in time, but I was to look at the budget the first month I was in operation. I was asked about it to ensure that our finances were protected so that we keep our independence. I even raised it directly with a number of key people. I am very much part of the community of agents of Parliament and work closely with them in that regard, including the Auditor General.

I apologize for not answering your question. With respect to the panel, it has been instituted for a number of years. In fact, they have looked at, for instance, Elections Canada's recent budget. A recommendation was made by the panel with respect to resources that were required. I did not need to appear before that panel. Of course, if I am called upon to explain my expenditures, I will be more than happy to do that, in addition to parliamentary committees.

The Chair: Among the other factors we look at is the independence to create your team, which you have described. What about your appointment? Do you operate at the will and pleasure of the executive, or do you have a fixed term appointment so that you have the independence to do the job that must be done?

Ms. Ouimet: There are four or five criteria for meeting the test of an agent of Parliament as opposed to an officer of Parliament, which falls into a different category. One of the tests is tenure, and I have a seven-year mandate.

The Chair: That is very helpful. Do you also have the ability to report more than once per year if you feel that you should?

Ms. Ouimet: Absolutely, Mr. Chair. In fact, I have an obligation. When there is serious wrongdoing, we have a 60- day day reporting timeline, and we must abide by that requirement.

The Chair: Let me finish by saying that if at any time you feel there are features of your appointment or the commission's creation that do not give you the independence to do the job expected of you, do not hesitate to get in touch with our clerk and our committee because we are trying to keep a watchful eye on all agents and officers of Parliament to ensure that they have the level of independence critical to doing the job expected of them.

Ms. Ouimet: I am very thankful for that, Mr. Chair, and I thank the committee.

The Chair: Do honourable senators have any questions arising out of any points that I raised? If not, that brings our meeting to a conclusion.

On behalf of the Standing Senate Committee on National Finance, I would like to thank Ms. Ouimet.


I would also like to thank Mr. Watson and Mr. Friday for coming to our meeting this morning.

The committee is adjourned.

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