Proceedings of the Standing Senate Committee on
National Finance
Issue 1 - Evidence - June 14, 2011
OTTAWA, Tuesday, June 14, 2011
The Standing Senate Committee on National Finance met this day at 9:32 a.m., pursuant to rule 88 of the Rules of the Senate, to organize the activities of the committee.
[English]
Adam Thompson, Clerk of the Committee: Honourable senators, as clerk of your committee, it is my duty to preside over the election of a chair. I am now prepared to receive nominations to that effect.
Senator Gerstein: It would be a great pleasure to nominate the Honourable Senator Joseph Day as chair of the committee.
Mr. Thompson: Are there any other nominations?
Senator Oliver: I move that nominations cease.
Mr. Thompson: Seeing no further nominations, it is moved by the Honourable Senator Gerstein that the Honourable Senator Day do take the chair of this committee.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Mr. Thompson: I declare the motion carried and invite Senator Day to take the chair.
Senator Joseph A. Day (Chair) in the chair.
The Chair: Thank you very much for your vote of confidence. I appreciate the nomination, Senator Gerstein.
Each of us has the proposed agenda for the day. It is a legal length paper. Next is Item No. 2, the election on the position of deputy chair. Are there any nominations?
Senator Ringuette: I nominate the Honourable Senator Gerstein as our deputy chair.
The Chair: The name of Senator Gerstein has been placed on our list of nominations. Are there any other nominations?
Seeing and hearing no other nominations, I declare Senator Gerstein elected as deputy chair of our committee.
Item No. 3 concerns the Subcommittee on Agenda and Procedure. The Subcommittee on Agenda and Procedure is colloquially referred to as a steering committee — I do not know why we call it agenda and procedure or the steering committee, but both terms are used. The motion states:
That the Subcommittee on Agenda and Procedure be composed of the chair, the deputy chair, and one other member of the committee, to be designated after the usual consultation; and
That the subcommittee be empowered to make decisions on behalf of the committee with regard to its agenda, to invite witnesses, and to schedule hearings.
I understand that the usual consultation has taken place and that Senator Runciman is the other member of our committee nominated for this position.
Senator Runciman, do you accept that important position on the Subcommittee on Agenda and Procedure?
Senator Runciman: With you twisting my arm, yes.
The Chair: Thank you and congratulations. We need to formalize that motion.
Senator Neufeld: So moved.
The Chair: All those in favour? Contrary minded, if any? I declare the motion formally adopted.
It is too late to back out now, Senator Runciman. Thank you.
Item No. 4 is a motion to publish the committee's proceedings. You have had a chance to read it. Is there a mover?
Senator Callbeck: I so move.
The Chair: All those in favour?
Hon. Senators: Agreed.
The Chair: Contrary minded, if any? Carried.
Item No. 5 is an authorization to hold meetings and to receive evidence when quorum is not present. We put some qualifiers on this motion. I think it is an important motion to read. It states:
That, pursuant to rule 89, the chair be authorized to hold meetings, to receive and authorize the publication of the evidence when a quorum is not present, provided that a member of the committee from both the government and the opposition be present.
It is important that there is at least one member from the government and the opposition.
Senator Ringuette: So moved.
The Chair: That was moved by Senator Ringuette. All those in favour signify by saying yea; contrary minded, if any, nay.
Hon. Senators: Agreed.
The Chair: The motion is carried.
Item No. 6 deals with financial reports and that the committee adopt the draft first report. That report has been circulated.
Mr. Thompson, would you like to comment on this item before I call for a nominator?
Mr. Thompson: The only expenses that we incurred are related to witnesses. The larger number includes all of our consideration of estimates as well as the two budget implementation bills. The smaller number is related to our study of the one-cent coin. This is a report on the costs incurred in the previous session.
The Chair: This is for the third session of the last Parliament?
Mr. Thompson: That is correct.
The Chair: Assuming that this draft report is adopted, will it be filed and voted on in the Senate as a whole?
Mr. Thompson: It is only tabled for information. It is not voted on.
The Chair: It is tabled for information once it is adopted here.
Could I have someone move the adoption of this report?
Senator Gerstein: So moved.
The Chair: All those in favour signify by saying "yea?"
Hon. Senators: Yea.
The Chair: Contrary minded, if any? Carried. That report is adopted.
Item No. 7 deals with research staff. You have had a chance to review the particular motion that appears here. I understand that for the time being John Bulmer and Sylvain Fleury will be continuing with us. They have done a fine job in the past. We appreciate very much their help and support, especially in those times when we need a report rather quickly. They have responded nicely for us.
I am afraid to say — and I know you already know this — that we will be calling on you for two or three reports rather quickly in the next while, which we will talk about later.
Would someone like to move that motion?
Senator Neufeld: So moved.
The Chair: All those in favour please say "yea."
Hon. Senators: Yea.
The Chair: Contrary minded, if any? Carried.
Sylvain and John, please join us at the table. Congratulations on a well-fought campaign. We appreciate that.
Item No. 8 concerns the authority to commit funds and certify accounts.
Would you like to explain that, Mr. Thompson?
Mr. Thompson: Under the Senate Administrative Rules, committees are authorized to delegate the authority to certify and commit accounts. This motion indicates that accounts must be certified by one of the chair, the deputy chair or the clerk of the committee. Should the committee engage any consultants or other personnel, that authority is conferred jointly on the chair and deputy chair, meaning that they both must sign any invoices or contracts.
Senator Oliver: Does this mean that even the payment of witness fees must be certified in the same way, such as for a witness coming in from Vancouver?
Mr. Thompson: That is a little bit different because those funds are drawn from a separate account. Those accounts are certified by the Principal Clerk of Committees, as she has been authorized to manage that fund.
Yes, there are certain instances where the chair or the deputy chair may need to approve a variance from the policy regarding witness expenses, but this is more if the committee were to receive a budget for a special study if they were to travel. It is the authorization to approve those types of expenses.
Senator Oliver: However, the budget we just adopted related entirely to witness fees.
Mr. Thompson: That was actually a report on the last session.
Senator Oliver: All for witness fees?
Mr. Thompson: Yes. We did not have any budget at all in the last session.
The Chair: I think Senator Oliver is asking whether, as a clerk, you confirmed that those fees were in fact incurred by those witnesses who appeared here.
Mr. Thompson: Yes, I did. I certify all witness expense claims and they are then countersigned by the Principal Clerk of Committees.
The Chair: Would someone like to move item No. 8?
Senator Oliver: I so move.
The Chair: All those in favour please say "yea."
Hon. Senators: Yea.
The Chair: Contrary minded, if any? Carried.
[Translation]
Now, item Number 9: travel. Would a senator like to move this motion? Senator Rivard.
Are there any questions? All those in favour of the motion please say "yea."
Hon. Senators: Yea.
The Chair: "Nays," no. Thank you. The motion is carried.
[English]
No. 10: designation of members travelling on committee business. Is there anything out of the ordinary?
Mr. Thompson, could you please explain this item so that all senators understand the designation "official business"?
Mr. Thompson: The designation "official business" makes reference to the Senators Attendance Policy. There are certain situations where you may be required to be on official business and not be able to attend the Senate sitting, and that has implications for your attendance in the chamber.
There is an itemized list of situations where you may be on official business. It may be at the request of a minister of the Crown or certain other scenarios. One of the designated instances is when you are travelling on behalf of the committee. This motion authorizes the steering committee to make the determination of when a member is travelling on behalf of the committee and imposes an obligation on the steering committee to report back to the full committee when such a determination is made.
Senator Ringuette: I understand this. However, I would like for it to include the fact that when a committee is sitting at the same time the Senate is sitting, it be designated that we are sitting in the Senate. Otherwise, we have to leave here, go to sit in the Senate for five minutes, and then come back to our committee. From my perspective, that is not very efficient.
How can we resolve that issue? I think that in the next few weeks we may find ourselves in that situation.
The Chair: As I understand this motion, the subcommittee can designate our attendance as official business, but we would not be shown as being in the chamber on official business. In the Journals each day, there is a list of those in attendance in the chamber and those in attendance on official business. Sometimes we are here, but we are not in the chamber or we are somewhere else; however, we are serving. We would not be able to designate ourselves in the chamber if we were not in the chamber.
Senator Ringuette: There might be another option. Could a motion be put forth in the Senate with regard to this committee sitting outside its normal hours such that the members who would be sitting those unusual hours in committee would also be deemed to be sitting in the Senate? Could that be done? Otherwise, it is inefficient for all members of our committee when that situation happens.
Mr. Thompson: I will explain my understanding of how the attendance policy presently says. If a committee meeting completely encompasses a sitting of the Senate, you are deemed to be in attendance and there is no problem. However, if the meeting does not completely cover the Senate sitting, there is an expectation that you are also present in the Senate. That is the way the policy is drafted. If you would like to see changes, perhaps that should be raised with the Rules Committee. That is the policy as it is now.
Senator Ringuette: I understand the policy. That being said, the Senate as a whole can agree to something in a specific situation. Therefore, I think that if ever the chair is required to submit to the Senate as a whole that this committee sit outside its regular hours, the members of this committee who are present at the committee meeting should also be deemed to be present in the Senate.
The Chair: Are there other comments? It is an interesting point. I do not know that we have the authority to agree to that here, but I think you can certainly direct me to ask the Senate chamber.
Senator Gerstein: I empathize very much with Senator Ringuette's comment. Several members on this committee have perfect records in the Senate, and this would preclude the fact that if you are away on official attendance, you are not marked as an attendee.
Having said that, I was also advised that unless the young lady sees you sitting in the chamber, she will not check you off; it is as simple as that. We may, over the next week or so, have to pop our heads in. I totally agree with the senator's comments.
Senator Neufeld: I have not been here as long as some folks, but I do not think that difficulty has occurred yet. I have not heard of this committee meeting at exactly the same time as the Senate, just after the Senate bells ring. We just have to go over to the Senate, be in our seat for five minutes, be checked off as present, and our meeting will start afterwards. I think that is the way the normal rules work and have been working. I have not seen any difficulty, but maybe I am wrong.
Senator Oliver: The Mace Bearer sits at the back of the Senate chamber, as people know, and has a list of senators and checks them off as they appear in the chamber. The normal thing to do is to write a letter to the Clerk of the Senate if you will not be in the chamber because of a committee or because you are away on public business. A letter to the Clerk of the Senate is what he will use to determine which of the two columns you fall under.
One time I was sick and suddenly noticed that I had no days left of my 21 because no letter had gone to the Clerk of the Senate. When you are away because you are sick or on public business, you have the responsibility to write to the Clerk of the Senate to so advise and to attach consents or releases, as the case may be.
Senator Runciman: I do not think there is any question that this matter merits a review by the Rules Committee. I am not sure all the clerks are aware of the rule that you cover the complete sitting of the Senate.
I served on the Legal and Constitutional Affairs Committee. If you recall, we were trying to get a number of bills through. We started ahead of the Senate and kept going. We all had to slip out at some period. There can be important witnesses that you want to take part in the deliberations and you miss that opportunity because of this archaic rule, as I think it is. There should be some recognition that we are tied up here doing our jobs. That should be recognized by the rules.
Senator Callbeck: I would agree with having the Rules Committee look at this. The policy really does not make any sense the way it is now.
The Chair: It is somewhat artificial.
Thank you for raising that issue. The steering committee, along with our clerk, will undertake to get some action on this from the Rules Committee. We will follow up on it.
I do not think I called for a mover on Item No. 10. Would someone like to move the usual motion that appears on the agenda?
Senator Eggleton: So moved.
The Chair: All those in favour please say "yea."
Hon. Senators: Yea.
The Chair: Contrary-minded, if any, please say "nay." The motion is carried.
Item No. 11 has to do with the travelling and living expenses of witnesses.
Mr. Thompson, you explained that the travel and living expenses for witnesses comes out of a different account, but we still have to account for it.
Mr. Thompson: Yes.
The Chair: You would normally sign off on our behalf.
Mr. Thompson: Yes, I sign off on witness claims providing that the steering committee has agreed to cover expenses, as does the Principal Clerk of Committees, to ensure that any claims do conform to the policy on witness expenses as approved by the Internal Economy Committee.
The Chair: What we see in the first report are the last session's expenses that we just talked about.
Is there any further question on that item? Senator Marshall moves that item No. 11 be adopted. Those in favour please say "yea."
Hon. Senators: Yea.
The Chair: Contrary-minded, if any, please say "nay." The motion is carried.
Item No. 12 concerns communications. We normally would have a communications person from the Communications Directorate. Have we been informed of a person who would be our communications liaison person?
Jean-Pierre Morin, Communications Consultant, Committees Directorate, Senate of Canada: I am the one, senator. My name is Jean-Pierre Morin. I worked in the Senate five years ago. I moved to the Office of the Governor General and then retired, but now I am back on contract.
The Chair: Excellent. Do we have your exclusive attention or are you with a number of other committees?
Mr. Morin: No, I have two other committees.
The Chair: Maybe we can have a meeting with the steering committee sometime early on and meet with you to talk about our plans and how we can raise the profile of this particular committee.
Would someone like to move Item No. 12 and welcome Mr. Jean-Pierre Morin?
Senator Gerstein: I so move.
The Chair: Those in favour please say "yea."
Hon. Senators: Yea.
The Chair: Contrary-minded, if any, say "nay." The motion is carried.
Item No. 13 is the time slot for regular meetings. The times shown here are 9:30 to 11:30 on Tuesday and Wednesday from 6:45 to 8:45. A number of you have commented on the Wednesday meeting time slot.
[Translation]
Senator Rivard: Mr. Chair, am I to understand from the French that we will be meeting on Thursdays? In the text, the translation of "Wednesday" appears as "jeudi." That must be a typo.
Senator Ringuette: In the French version, this is the first time I have seen the days of the week in the plural.
The Chair: It is Tuesdays and Thursdays.
Senator Rivard: In any event, it is Wednesday, not Thursday.
The Chair: Perhaps the French-speaking people will be meeting on Thursdays.
Senator Rivard: That is discrimination.
The Chair: Thank you for this comment. We are going to make a correction.
[English]
This raises an interesting point in that normally "le mardi" means "Tuesdays." We will change that.
Let us talk about Wednesday, 6:45 to 8:45. That used to be 6:15. That was changed because other committees were just finishing and people had difficulty getting here. It was changed to 6:30 and then again to 6:45 without any consultation with us as the senators who attend these various meetings.
A number of you have individually mentioned to me that 6:45 is starting to get late. The time to wrap up is 8:45. Many times we have stood around for 15 minutes waiting for things to start. Do you have any comments?
Senator Runciman: I have a personal conflict. I sit on the Legal and Constitutional Affairs Committee. In the last session I had to leave the Legal Committee and miss about a half hour or 20 minutes. It is hard to get a substitute for half an hour or 20 minutes and get over here. Our meetings were in the East Block. I found it quite challenging to get here for the start of Finance Committee meetings given the agenda of the Legal Committee. That is a personal challenge. If we have meetings any earlier, we are still looking at a significant agenda for the Legal Committee this coming fall. From a personal perspective, it will continue to be challenging.
The Chair: Is the Legal Committee designated to finish at six o'clock?
Senator Ringuette: It finishes at 6:15.
Senator Runciman: It was normal practice to extend the hours. I can say that it never ended on time.
Senator Neufeld: The meetings are supposed to end at a certain time. I know what you are talking about because I have had to sit through a few of those, but when you are supposed to end at a certain time, you are supposed to end. If the Legal Committee wants to continue on for another half an hour, that is up to them, but we should not have to change our time to accommodate the Legal Committee not being punctual. I do not have any problem with meeting a little later so the senator can get over here. That is not an issue with me at all.
Senator Nancy Ruth: I like this time because it allows me to have a quick supper with someone I need to talk with before coming to Finance Committee meetings. An earlier time makes that impossible, so I like this.
The Chair: You know that we have a meal here as well.
Senator Nancy Ruth: I know. It is not that; it is the meeting time.
The Chair: I cannot say that you could bring your friend.
Senator Nancy Ruth: Not into the lion's den.
The Chair: There is some pressure with respect to the cost of meals. How many people are dining off the meal that we set aside for our senators and how many other people are taking advantage of that is a matter of some discussion because the costs are quite considerable over the year for all committees.
Am I reading the consensus that we will not make any changes to a start time of 6:45 and that we will try to start on time?
Senator Oliver: In view of what Senator Runciman has said about his conflict, it is something that should be taken up with the leadership. The leadership on both sides should know that it is certainly not fair to Senator Runciman or any other senator if a committee has a habit of running late and therefore making it difficult for senators to be on time for another meeting that is duly scheduled. I think that should be discussed with the leadership.
Senator Neufeld: That is a good point. There is another conflict this Wednesday night: the Stanley Cup final.
The Chair: The steering committee will be talking about that. I was hoping we would not have to deal with that matter.
Senator Neufeld: I just wanted to bring it to your attention.
The Chair: No motion required with respect to Item No. 13. Based on our discussion, I will not bring up the issue of changing our time slot, but I will bring up the issue of other committees finishing at 6:15 so that committee members can be here on time.
Is there other business to bring before this committee? Senator Ringuette, do you have something on Item No. 14.
Senator Ringuette: I want to know if we have an update on the proposed replies to the questions that this committee asks different witnesses.
You will remember, Mr. Thompson, that we brought that forward and there was an agreement that you would look into a system with regard to the questions that we ask officials from different departments and the answers that we get or we do not get so that we can have a tally to ensure that we receive responses to our questions.
Mr. Thompson: During the period of dissolution, I received further responses. I will distribute those to the members now that the committee has been reconstituted. With the committee's permission, I will now follow up with any outstanding replies. I do not believe there are many remaining.
Starting fresh in a new session, it will be much easier to maintain an ongoing list. I will endeavour to provide regular updates and produce a chart so that members can see what commitments were made and have an ongoing report. We will be able to get that up and running and keep it going. That will make things much easier.
Senator Ringuette: Thank you.
The Chair: Is there any other new business? That concludes the formal part of organizing our committee.
There are a number of points I would like to bring to your attention. We have two people who will help us out with issues that will lead into what we have to deal with before we break for the summer.
The House of Commons is intending to break on June 23. Typically they will send two supply bills to us just before they break. One is based on the Main Estimates, and you have all received your Main Estimates. They have been referred to us already, so we are ready to go on those. In fact, we had hoped to start last Thursday on the Main Estimates.
You will recall that we started the Main Estimates back in March and we did a report at that time. That report and all the material that we gathered on the Main Estimates in March have now been referred to our committee as well. They can be incorporated into any further report that we may make with respect to the Main Estimates.
Mr. Thompson, stop me if I misspeak here and help me through this.
The other item of supply is about $2.1 billion of the Supplementary Estimates (A), which have also been referred to us. The process that we follow is to have hearings to the extent that the steering committee feels we should and then develop a report rather quickly. That report is adopted by the committee, presented in the Senate, debated, and hopefully adopted. That forms the basis of our committee work on the supply bills.
When the bills come, we go through the steps, but the two supply bills will not be referred to the committee. They will go through the second and third readings and we will have studied them.
That is the process with respect to supply. Since we will not get the supply bills until June 23 — June 22 if we are lucky — we will be here the following week to deal with that. Our objective, I hope, will be to have the reports done before we receive the bills so that we will not have to hold up the study of the bills pending the adoption of the reports.
We also have a budget implementation bill that I understand might be presented either today or tomorrow in the House of Commons.
Do you have a specific date yet?
Mr. Thompson: No, senator, I do not. I know that it is on the Notice Paper in the House of Commons, so it could come as early as today. However, I am unsure specifically when it will come.
The Chair: We would like to do a pre-study. We need approval to do pre-study on the budget implementation bill.
Mr. Thompson: Yes, we would need an order of reference from the Senate to do that.
The Chair: As soon as the bill is in Parliament, we can get authority to study the subject matter. That will allow us flexibility to meet out of our normal time and to deal with the budget implementation bill so that, when it is received, we hopefully will have finished our study of it as well. Therefore, we can move it through more quickly. It would normally be referred to us; we would go through clause-by-clause study and then send it back, having already studied it.
Those are the items that we are juggling. Three of them are critical; they have to be done before the summer break.
Senator Callbeck: Will we have extra sittings this week? When will we know?
The Chair: Now that this committee has organized, our steering committee will meet. Are you talking about our particular committee?
Senator Callbeck: Yes.
The Chair: Steering will make that decision and communicate that to you. We have had some informal discussions, but we could not have formal discussions on this until we were organized.
Senator Callbeck: Could you let us know about the informal discussions?
The Chair: Senator Gerstein and I have been informally discussing about meeting tomorrow in our normal time slot and then Thursday morning to study the Supplementary Estimates (A).
Senator Callbeck: At what time?
The Chair: I think it was 9:30 to 11. We are still working on the time frame.
Senator Ringuette: We have the Banking Committee.
The Chair: We are trying to get it done before the Banking Committee sits. With respect to the Supplementary Estimates (A) on Thursday, we would bring in officials from Treasury Board.
That leads us to the next item, unless there is something further on that tentative schedule.
Senator Callbeck: Are we likely to meet next Monday?
The Chair: That depends on what the steering committee determines with respect to how many hearings we should have on each of these matters, or you as a committee. Our steering committee makes recommendations, but if you say that we need more study of the Main Estimates, then we will have to find time to work those hearings into our schedule.
We did a pretty good job on the Main Estimates in March. There is a good report on that, so we just need to bring that up to speed.
The report on the Main Estimates was for interim supply. Interim supply never happened, you will recall, because the government fell prior to interim supply being presented. Therefore, the government operated on what are called warrants. We asked Mr. Alex Smith from the Library of Parliament to be here to help explain the situation to us as I do not want to take up all of Thursday morning's meeting on the topic of warrants.
Just so members understand, there was no interim supply. There was no authority for the government to spend money from April 1 until the new supply is passed because the government fell during that time frame. Therefore, how do we operate? How does the government pay all of the civil servants? How does it function?
Mr. Smith, why do you not come over here and explain a bit of the background on these particular matters.
Alex Smith, Analyst, Library of Parliament: As has been discussed, Parliament was dissolved for the purposes of an election on March 25. I am sure you all understand the normal process of supply. The government presents its spending plans and estimates documents. Those are reviewed in the other place in committees and here in the National Finance Committee, and then you report back to your respective chambers. That supports consideration of an appropriation bill. T
The appropriation bill is first passed by the House of Commons and is then considered by the Senate. It is the appropriation bill that actually authorizes the government to spend funds. Without that appropriation bill being passed, the government has no authority to spend money. Once that is passed and receives Royal Assent, the Governor General then issues a warrant authorizing the government to spend money from the Consolidated Revenue Fund.
As you know, Parliament was dissolved and those appropriation bills, either for interim supply or for the Main Estimates, were not adopted. The fiscal year began on April 1. The government needed money in order to operate. The Financial Administration Act outlines a process that allows the government to access funds. The government presents its plans to the Governor General, and the Governor General is able to sign off and say, "Yes, you can spend funds." These are called special warrants because they are in this special circumstance.
A few limitations outlined in the Financial Administration Act. One is that special warrants can only be used during the dissolution of Parliament. Prior to 1997, special warrants could be used during prorogation. This led to some controversy, so an act was adopted by Parliament to limit this practice to during an election period only and then up to 60 days following the return of the writs for the election. If the writs were returned on May 23, the government would have been able to use special writs for another 60 days after that. However, once Parliament is back in session, it can no longer issue special warrants.
Senator Gerstein: What happens once the writs return?
Mr. Smith: The returning officer for a riding signs off and says, "This is the result for this particular riding; this is the ballot count."
Senator Gerstein: That takes several weeks, I assume.
Mr. Smith: They give them several weeks. Usually they are returned within several days, but if there is a recount or some dispute, the Governor General in this particular instance said that they were expected back by May 23.
The second condition is that a minister must declare that the payments are urgently required for the public good. Over time, this has come to mean that the normal core operations of the government are permitted to continue operating. The government can continue to issue cheques for Employment Insurance and can continue to pay the salaries of public servants and so forth.
The third condition is that the President of the Treasury Board must certify that no other appropriations are available. In this particular year it was April 1, so there was no money for the new year. In other years there might be funds available. If it is toward the end of the fiscal year, you would have funds available in previous appropriations.
Special warrants are not needed in every single election period. In 2008 they were not needed, in 2006 they were, and in the previous election they were not. Whether or not the special warrants are needed depends on when the election occurs during the fiscal cycle.
The other thing special warrants cannot do is confer an authority that requires the approval of Parliament. Special warrants cannot be used to transfer funds between organizations and they cannot be used to approve a new grant program. Those situations must be authorized through the normal appropriation process.
As part of the reporting mechanism, the government must issue a statement in the Canada Gazette within 30 days after using a special warrant, and that was done in this case. Special warrants were issued for two periods. There is a special warrant from April 1 to May 15, 45 days, for $13.4 billion. A second special warrant was for May 16 to June 29, for $11.1 billion. The reason it extended to June 29 was to allow Parliament time to come back, consider appropriation bills and estimates documents, and then authorize the spending through the normal process.
The final element is that once Parliament returns, the government must issue a statement. I think it is probably in the normal blue binding, but it is a statement on the use of special warrants. This contains an introduction outlining what I have been telling you today. The amounts included in the special warrants are appended to the first appropriation bill considered by Parliament, which I believe will be the Main Estimates for the year.
Parliament then has the opportunity to review the statement on the use of the special warrants and to question government officials as they may wish.
Senator Marshall: Is there a limit on the time frame of special warrants? You spoke about two warrants, one from April 1 to May 15 and the second from May 16 to June 29. Can a warrant just be issued for 45 days? Is there a maximum time frame? Can you get a warrant for six months?
Mr. Smith: There is nothing outlined in the legislation limiting the time period. The secretariat has decided that they should keep the time period as short as possible in order to respect the convention of what is going on. Often that has meant 30 days. In the case of the final warrant, it has meant a 45-day period to allow extra time for Parliament to return and consider its appropriations. No time period specified is in the legislation. They have adopted that time period by convention.
Senator Marshall: Will the amount covered in the warrant also be in the appropriation bill?
Mr. Smith: It has already been authorized for spending because the Governor General has already authorized the spending. However, the legislation says it will be appended to the appropriation bill. It is not an additional amount to be authorized. It is there for information purposes: "Here is what we authorized previously, and here we are seeking parliamentary approval to accept what has taken place."
Senator Oliver: I have a question about parliamentary scrutiny of what the government does with these extraordinary powers, these warrants. Does the House of Commons Standing Committee on Finance actually have hearings on these warrants, or is it something they do when they are studying the appropriation bills? They may or may not ask questions about how that warrant money was expended. Is there a special mechanism for dealing specifically with this massive outlay of cash?
Mr. Smith: I am not aware of any special mechanism. This does not occur very often. I do not recall any hearings on the special warrants in 2006. Any period prior to that would be before my time with the library. It may have occurred previous to that, but there is no special mechanism. It is there for the committees of the other place to consider if they so choose, but I am not aware of any special process or whether the house committees have a plan to examine the special warrants this time around.
Senator Oliver: There should be because, as you have outlined, special conditions must be met by the government. The Governor General does give permission, but there are a number of things the government cannot do. There should be some parliamentary scrutiny to ensure that has been done.
Mr. Smith: Absolutely.
The Chair: You raise a good point. We will have Treasury Board appear here. It can be part of our scrutiny to ask them if they followed all the rules. In the next while, we will hopefully also have a representative from the Department of Finance, most likely Mr. Menzies representing the minister with respect to budget implementation. We can ask that question at that time.
Senator Runciman: I know this will not happen, but you talked with Senator Marshall about the timelines of 30 and 45 days. What happens if those guidelines or timelines are exceeded? What is the fallback position?
Mr. Smith: As I was saying, nothing is legislated that specifies a certain timeline for the period they are intended to cover. There is a timeline for their issuance. They could not be issued 60 days following the return of the writs, but they could be for a period of time that is longer than 45 days. I would assume that is where parliamentary scrutiny would play its role in saying, "Why are you using them for such a long period of time?" If you invite officials, you will have the opportunity to ask them about the particular length of time in this instance.
Senator Runciman: For example, would going beyond June 29 require an order-in-council to extend it for four or five days? Who makes that decision?
Mr. Smith: Special warrants are signed by the minister responsible for a particular department, and the Treasury Board minister must sign off that no other appropriation is available. An order-in-council then directs the Governor General to prepare the special warrants.
Mr. Thompson: It is important to understand that as far as extending that period for an extra three or four days, Parliament is no longer dissolved and there is no longer that special warrant authority. There could not be an extension, at this point, to the current period covered by the warrant.
Senator Runciman: How would funds flow, then?
Mr. Thompson: It would be through the regular supply process.
Senator Runciman: What if supply has not been dealt with?
Mr. Smith: If Parliament has not adopted supply by June 29, the government will run out of funds.
Senator Neufeld: That means we will have it done. It is clear when that date is put in place that it will be done.
The Chair: Any scrutiny we would like to do should be done before that date.
Senator Neufeld: I would say that is entirely correct.
Senator Runciman: We should move that up to June 23.
The Chair: We are familiar with the emergency funding from Treasury Board. This is not that kind of emergency funding from Treasury Board that would go to a department until the next supply comes along and then Treasury Board is reimbursed; am I correct?
Mr. Smith: In the Main Estimates, as the chair is noting, there is a vote for the Treasury Board to have a contingency amount of funds. I believe it is $750 million or so, and it can help departments out until the next supply period.
One of the conditions on the use of special warrants is that all other appropriations must be used up. That would be one of the appropriations available for departments to use up before appealing to special warrants. Because this fiscal year started April 1, no Treasury Board contingencies vote was available to use up before the special warrants were needed.
The Chair: When a supply bill or an appropriation bill comes along, should we anticipate that it will be for the full amount of the Main Estimates, or the full amount of the Main Estimates less the $24.5 billion that has gone out by way of interim supply, if that had happened?
Mr. Smith: That is an excellent question. I do not believe we have an appropriation bill, but it should. Normally, if you had interim supply, usually it is about three twelfths, so the full supply is reduced by that amount. I would assume there would be a similar adjustment made for the amounts in the appropriation bill as opposed to what is in the Main Estimates.
The Chair: That has differed from the emergency fund, where the full amount would be approved by Parliament and then reimbursed to Treasury Board to top up their $750 million. It is treated somewhat differently, and it would be interesting to follow up on those questions.
Mr. Smith: One other issue senators may wish to consider is Supplementary Estimates (C). They were introduced back in February, and they were up for vote on the day that Parliament was dissolved. It is not clear what happened to that funding. Were the departments able to find funding internally or make adjustments? There was money presented to Parliament for approval but not approved by Parliament, so what happened with those needs? Did they find funding elsewhere? What happened?
The Chair: Could a warrant cover that?
Mr. Smith: Warrants are used for the fiscal year in which they are issued. They could have used a warrant, but they would have had to issue it by March 31. As that did not occur, I do not know what happened. It is not clear to me, so it might be worth pursuing.
The Chair: You raise another interesting point that we had not thought of. Had the appropriation bill for Supplementary Estimates (C) come down? Have we looked at that?
Mr. Thompson: We did report on Supplementary Estimates (C) and it was adopted by the Senate, but as you know, the government fell before either of the appropriation bills were introduced.
The Chair: Therefore, we never saw the bill.
Mr. Smith: It was to be considered at the end of the day on March 25, but earlier on that day the government fell in the House of Commons.
The Chair: That is another interesting point we can follow up. Maybe they did not need that money after all.
Senator Ringuette: The issue is whether they spent the money that they were not authorized to spend.
The Chair: That would be part of it, or did they not need that money at all?
Senator Neufeld: If they did, supplementary estimates are additions. I am going to back up a bit. There was no approval for spending of any of that money, so yes.
The Chair: It is an interesting point. We will follow up on that.
Senator Oliver: What was in Supplementary Estimates (C)?
Mr. Smith: I am left at a loss, but one possibility is they had funds available. Departments often lapse funds; they do not use up all their money at end of the year. That could be a source of the funding. They just used the extra funding they had in their envelope. I do not know; I am just speculating. I know the analysts of this committee might be able to help you with what was in Supplementary Estimates (C).
The Chair: I would like to thank you very much for raising some very interesting points on this transition period.
Colleagues, the other item that we wanted to deal with informally, but could not do formally until we were organized, is one of the items under the Main Estimates. It was our list of items made prior to the election, and we thought we would follow up on it.
We have asked Mary McFadyen, General Counsel with the Office of the Ombudsman, National Defence and Canadian Forces, to come here. We were hoping to have with us both the new ombudsman for Veterans Affairs and the ombudsman for the Canadian Forces. However, on short notice, we are very pleased to welcome Ms. McFadyen. She will tell us what the ombudsman's office does for Canadians Forces personnel and families. I will ask her to come forward to deal with that aspect of the Main Estimates.
Thank you for being here, Ms. McFadyen.
Mary McFadyen, General Counsel, Office of the Ombudsman, National Defence and Canadian Forces: We did bring some information about our office, which I believe the clerk is passing out.
Mr. Chair, would I like to begin by thanking the committee for inviting us to testify today on the mandate, budget and operations of the Office of the Ombudsman for the Department of National Defence and Canadian Forces.
[Translation]
The ombudsman, Pierre Daigle, asked me to pass along his sincere regrets; he wanted to be here but had a long-standing commitment to meet with members of the Canadian Forces, their families, military caregivers and National Defence employees in Edmonton today.
However, as general counsel for the office since 2002 and the interim ombudsman throughout 2008, I believe that I can answer your questions today.
[English]
The Office of the Ombudsman was created in 1998 to increase openness and transparency in the Department of National Defence and the Canadian Forces, as well as to ensure the fair treatment of concerns raised by Canadian Forces members, departmental employees and their families.
The office acts as a direct source of information, referral and education. It helps the members of the defence community navigate a large and complex organization in order to access existing channels of assistance or redress when they have a complaint or concern.
The office is also responsible for reviewing and investigating complaints of unfair treatment from a broad range of constituents, including current and former members of the Canadian Forces, both regular force members and reservists; current and former employees of the Department of National Defence; family members of our soldiers, sailors, airmen, airwomen and civilian employees; Canadians applying to become members of the Canadian Forces; and others. It is impossible to know the exact number of our constituents, but they certainly number well over 300,000.
Last year, we received 1,454 new complaints from our constituents. In total, our investigators and intake officers closed 1,302 cases, including new cases, cases that were reopened and cases left over from previous years.
At Annex A to these notes, committee members can find information on the most common types of complaints that we receive. Annex B shows the disposition of our cases from last year.
[Translation]
Our investigators always attempt to resolve complaints informally and at the lowest level possible. However, complaints can also be the subject of thorough investigations, leading to a formal report with findings and recommendations that are made public.
More broadly, the ombudsman has a mandate to investigate and make recommendations to improve the overall well-being and quality of life of the members of the defence community. Investigations from our office have produced substantial and long-lasting improvements in the Canadian Forces, including important changes in the areas of post-traumatic stress disorder and operational stress injuries and improvements in the treatment received by the families of military members who are killed during their service to Canada.
[English]
The ombudsman is independent of the military chain of command and senior civilian management, reporting directly to the Minister of National Defence. The ombudsman is appointed to the position by the Governor-in-Council. The office is not formally established under legislation; instead, it derives its authority from ministerial directives and their accompanying Defence Administrative Orders and Directives.
The ombudsman is supported by an office of approximately 60 federal public servants, including investigators, complaint analysts and intake officers with substantial knowledge and expertise in military matters. Ombudsman investigators include former police officers, former Canadian Forces members of all ranks and occupations, and public servants from across the federal government.
As an independent office, the ombudsman also has distinct legal, communications, finance and administration and human resources groups. At Annex C, committee members can find a broad organizational chart.
The ombudsman receives his budget of just over $6 million annually from the Department of National Defence. This budget has remained stable for more than five years and is generally sufficient for the effective implementation of our mandate. Committee members can find a detailed breakdown of these expenditures over the past year at Annex D to these notes.
Since our office was created in 1998, we have received more than 15,000 complaints from members of Canada's defence community. Our office has conducted more than 2,000 individual investigations and has achieved positive results for our constituents in the majority of these cases. In short, our office has made a difference for those who serve and sacrifice for our country.
[Translation]
Our office has also provided senior leadership with a credible and independent review mechanism to resolve sensitive cases. We have served as a less expensive, less formal, and quicker avenue of dispute resolution. And we have identified deficiencies and contradictions in policies, programs and practices. Again, in short, we have contributed to a more fair and effective military.
[English]
With that, Mr. Chair, I stand ready to address questions from committee members.
The Chair: Thank you, Ms. McFadyen. I appreciate that background. It helps us get a bit of flavour for the ombudsman's office within National Defence.
Senator Callbeck: I was looking at the website and the complaints from 2009-10. They were listed by different categories. "Former Military" was there, 263. Why would that not be looked at by the Veterans Ombudsman?
Ms. McFadyen: That is a good question. Our mandate includes matters that relate to National Defence and Canadian Forces, where the Office of the Veterans Ombudsman has a distinct mandate. Their mandate is for services delivered by Veterans Affairs.
Oftentimes, former members need to come to our office. Sometimes this has to do with pension matters, for instance. They get their annuity from the Canadian Forces Superannuation Act, which is managed by National Defence. If they have problems, such as not getting their pension, for example, they would phone us if they are having problems getting through the administration of DND.
Another example is that often we have people who are released from the military. They were released under a certain item, which gives them certain rights and benefits. Sometimes they take issue with that item. If they want that reviewed, this falls within the mandate of National Defence. If they are having problems with that, they come to our office.
Those are the types of complaints from former members that we would see. That is within our mandate. Veterans Affairs deals with services from Veterans Affairs.
Senator Callbeck: If you get a complaint that should really be dealt with by Veterans Affairs, do you send it on?
Ms. McFadyen: Sometimes we have someone come to our office, and they have given us all their paperwork. Once we have looked through it, we realize they are looking for disability compensation from Veterans Affairs or having problems with that, which does not fall within our mandate.
We have tried to make it as simple as possible for the person who has contacted us. We have them sign a consent form. Instead of sending the form back to that person and having them send it back to the Office of the Veterans Ombudsman, we will send it over and discuss with them what they have told us. This saves them some time. We try to streamline this for the veterans so they can get the best service possible.
Senator Callbeck: That is good.
How many outstanding complaints have been there for more than a year?
Ms. McFadyen: From the end of the last fiscal year, there were about 390 complaints left over. Some could be longer than a year. The reason is that sometimes it is a complicated matter or sometimes there are outstanding recommendations from systematic reports and we have kept those files open.
Our goal, as set out in our mandate, is to review matters within 60 days. Unfortunately, this is not always possible, but we try to be as quick as we can.
Senator Callbeck: What is the average time to settle a complaint?
Ms. McFadyen: I am not sure. I know that we are able to deal with most of our complaints at intake. Most of the time, they need to know where to go in the complex world of the DND organization to get the help they need. Sometimes they need information or a referral. We probably close most of the cases at intake, so they would probably be done within a month to two months. If they need more, sometimes we send them to a complaints resolution officer. When they come in, we make a couple of phone calls and help this person. We try to do that and get things done as quickly as possible.
Senator Callbeck: What would be the oldest complaint that is not settled?
Ms. McFadyen: I do not know if I can give you a time frame. Also, the complaints would be of a personal nature.
We released a report on the redress of grievance process where we saw a systemic problem with the Chief of Defence Staff not being able to grant financial compensation when he is reviewing a grievance. We had files that were left over from the grievance process that had been there for five or six years. We have kept those open because we have released this report.
Off the top of my head, I cannot say what the longest open file is.
The Chair: Ms. McFadyen, you indicated approximately 60 employees and $6 million a year. Can you tell us how that compares to the Office of the Veterans Ombudsman?
Ms. McFadyen: I am not sure exactly how many employees they have and I would be guessing if I said how many. I want to say 35, but I honestly do not know if that is correct t.
The Chair: We will have them in.
Ms. McFadyen: I believe we are more established than they are. I know they are in the infancy stage of setting up their office. They have an office here and one in Charlottetown. I am not sure of the exact numbers.
Senator Gerstein: Ms. McFadyen, your office was created in 1998, so you have been in operation for some 13 years. I do not know how long you have been there, but from the time the office was initiated, have you seen a change in the type of complaints that you are getting. If so, how have you restructured the department to respond to what is happening?
Ms. McFadyen: That is a very good question. I have been there since 2002, a lengthy period of time. Certainly the Canadian Forces has changed since the office was set up. With respect to Afghanistan, there is an active operational tempo for the Canadian Forces that was not there when the office was established. That is reflected in the type of systemic investigations that our office has done and continues to follow up on. For example, post-traumatic stress disorder is an issue we raised in 2002, and we still find that it needs to be looked at and reviewed. We have commenced another review of that issue within DND. You have to ensure that soldiers and their families are getting the care and treatment they need.
Another issue that the ombudsman has taken a deep interest in, because there is the need, is the treatment of families.
When the mandate was set up, it included that families had a right to bring a complaint to our office, but I am not sure that in 1998 the extent of how much that would be needed was realized.
Senator Gerstein: That is a very good answer.
Afghanistan came after the office was initiated. Are you satisfied that the office has adjusted to deal with these new types of things that have come up since, for example, Afghanistan?
Ms. McFadyen: I believe we have adjusted well because we get to see the types of complaints that come in, the trends, and where we should be focusing our efforts.
Senator Gerstein: Would Afghanistan and issues coming out of Afghanistan be the single biggest area that you are dealing with today?
Ms. McFadyen: Post-traumatic stress disorder is a big issue. It is hard to know if we have seen the extent of that issue in the Canadian Forces.
When we did our last investigation in 2008, we found that sometimes these symptoms do not arise for several years; something will trigger it. We have found that this is an issue with families. Sometimes they are the sole caregiver to these people, as there is a stigma and they are afraid to come forward; it may ruin their career. It is an issue we are dealing with that seems to be very important.
Senator Gerstein: Must the request come from the member of the military or can a family member bring it to your attention?
Ms. McFadyen: Family members can bring matters to our office. Sometimes the family member comes to us on their own, saying, "I have a spouse in deep trouble and I need help myself. What can I do?" If they come to us because their spouse needs help, if it is a personal issue with the spouse, the spouse needs to phone us directly so we can take action on his behalf. We treat it depending on the type of issue it is. We get many family members contacting us on behalf of their military spouses.
The Chair: There are Military Family Resource Centres within the various bases of the military. Does the ombudsman's office have anything to do them?
Ms. McFadyen: We sometimes refer people to those services so that they know they are available. The family resource centres are non-profit organizations set up under each province, so those organizations do not fall under our mandate. However, they do get funding from DND. If we saw a need for something to be recommended to DND to improve how they fund the MFRCs, that would be within our mandate.
Senator Marshall: Could you give us information with regard to the process that you follow? After you review a case, is there a decision? Is it binding or is it just in the form of a recommendation?
Ms. McFadyen: Our main purpose is to review the administrative actions of the DND/CF. If we find that people have been treated unfairly, we can make a recommendation to the department or to the Canadian Forces to fix the situation. As an ombudsman's office, we only make recommendations.
Senator Marshall: It is not binding.
Ms. McFadyen: It is not binding.
The offices of most ombudsmen find, as we do, that even though they cannot order anyone to do anything, one of the most powerful tools they have is the right under their mandate to go public. When public attention is shone on an issue, it often hurries up the need or the want to help someone.
Senator Marshall: Obviously, you go back and track your recommendations. How many and what percentage of your recommendations are accepted and implemented?
Ms. McFadyen: We do follow-ups to our investigations. We tracked that a while ago and found that more than 70 per cent have been followed. When we make important recommendations, if we intend to publish a report, we will provide it to the department as an interim report and give them the opportunity to review the recommendations so that they can comment. We do not want to make a recommendation that they cannot follow. We would like them to tell us ahead of time whether this is a good recommendation or not a good recommendation. They may say that for certain reasons they cannot do that. In that way, at least we know what we are dealing with. If we go with recommendations, we want to ensure they have the ability to implement them. Sometimes they have the ability but they do not want to, which is a different story, but we give them the opportunity to review them before making a formal recommendation.
Senator Marshall: If 70 per cent are accepted and implemented, that does not seem like a high percentage. For the people who feel that the outcome has not been what they wanted, what is the next step? Is there a further appeal procedure?
Ms. McFadyen: When I talk about the recommendations, these are the formal ones we have made in formal reports. For most of the cases, we deal with the individual issues through resolution. They are not the type of cases we make public. If we investigate and find someone has been treated unfairly, our first step is resolving it at the level of DND at which it can be resolved. If it cannot be resolved, then we would make a recommendation or make it more formal and say that this is what we think should be done.
Because we are not a legal entity such as a court, they do not have the right to appeal our decision if we decide not to investigate something or not to make a recommendation. We are not the type of office where there is a legal right to sue us or enforce us to do something on their behalf.
Senator Marshall: What would the next step be? Would it be legal action?
Ms. McFadyen: If a complainant wanted something more to be done for them within DND, they have the right to consult a lawyer. Sometimes people come to us and we tell them they need to see a lawyer instead of the office. If they are enforcing a real legal right, they should see a lawyer. Eventually, at the end, as the offices of all ombudsmen do, we make recommendations. Our goal is always to ensure that the organization fixes its own administrative problems and works them out so that it is better for the next person who comes along so we do not have to go through the same situation.
Senator Eggleton: I was the Minister of Defence in 1998 who created this position. It was a good idea then and I think it is a good idea today, as long as the government of the day will listen to what the ombudsman has to say about treating people fairly and dealing with flaws in the system. I want to ask questions about a couple of those flaws.
Last fall the ombudsman said he was increasingly troubled with cases where members of the Canadian Forces had died, perhaps some under suspicious conditions, and family members were trying to find out what happened. Some of them wait years. Some are actually shut out of the process and do not find out what is going on, and yet the death of a loved one has occurred. Is action being taken to correct that situation?
Ms. McFadyen: Yes. The ombudsman went public with that issue last fall. In particular, he raised the issues of five families that had waited forever. Their loved ones had died as a result of military duty, and they were not getting any information as to what happened or they were not getting any assistance to help them through how to deal with things. When the ombudsman went public, the minister said that he would review it personally and look into it.
I believe a follow-up done in March of this year. We received an update from the department. Some things are moving ahead a bit better; some families have been getting information, but I believe there is still work to be done in certain cases. That is something we continue to follow at our office.
Senator Eggleton: Is most of this action with respect to the Department of National Defence itself or does some of it require the government itself to intervene or make policy decisions?
Ms. McFadyen: To my recollection, it is within DND/CF. It is their information. It is department information.
Senator Eggleton: Does the ombudsman continue to pursue this matter?
Ms. McFadyen: Yes, he does.
Senator Eggleton: Another issue is that when there is a grievance and a settlement is to be made because something has been unfair, the Chief of Defence Staff does not have the authority to provide for that compensation. It then brings in the Department of Justice. Under any system, if you end up in a contentious situation, the legal guys come into it. This takes it out of the hands of an opportunity to right a wrong within the department itself. Is that situation changing at all?
Ms. McFadyen: It is an ongoing concern. In 2003, the former Chief Justice of Canada, Mr. Justice Lamer, conducted the first independent review of the changes that had been made in 1998 to the National Defence Act. One of his recommendations was that it is ridiculous that the Chief of Defence Staff, who is in charge of the Canadian Forces, when reviewing a grievance for a claim for a pair of boots, for instance, cannot say, "Yes, you can get that money because it deals with a claim against the Crown that falls ex gratia under claims settlement. That review has been delegated to Department of Justice lawyers within the legal services of DND. Therefore, this was never implemented.
We reviewed it again because we receive many complaints from people who say that the CDS found they had been treated unfairly, but at the end of his decision he said he could not deal with that and had to send it over to legal services. The complainant then gets a letter from legal services saying they will not pay anything.
It is interesting because the relationship between the Crown and the Canadian Forces is not an employee-employer contract relationship. Given the unique relationship under which soldiers serve, that is why the government set up things like the redress of grievance process. They have such a unique employment relationship that it lets them deal with their employment issues. When they get to the end of that long process and the CDS agrees that they have been treated unfairly and should get that money but the CDS does not have the right or authority to give out that money, it is sent over to the lawyers.
I am a lawyer, so I am not saying anything bad about lawyers; we do a good job. The lawyers look at the complaint under this government-wide Treasury Board policy that is not meant to be the same as the way we treat our soldiers under the grievance process. They look at it and determine there is no employment relationship between the Crown and the Canadian Forces; therefore, they have no legal obligation to pay this money. They write a letter saying this. They write it without prejudice, which means that if they sue this cannot be used against them. However, if they ever try to sue, usually they are told there is no employment relationship, so they do not have a right to sue.
What we thought should be done and what we have recommended is to give the CDS the power to determine these matters. These are things that should be dealt with efficiently, looking at the relationship of the soldier to the Canadian Forces so they can be dealt with under that lens.
Senator Eggleton: That is why we have the ombudsman function and it should be allowed to function properly.
The Chair: Would a deputy minister in another department have the authority to resolve a similar situation?
Ms. McFadyen: Under the Treasury Board policy, that authority falls to the deputy head of each department, so each deputy minister. In National Defence, the deputy minister has delegated that to counsel within legal services to do on his behalf.
Senator Nancy Ruth: I am confused, so I will put out a stream of commentary and you can try to put it back together.
You deal with current forces, past forces, those who want to be in the forces and there is still a Veterans Ombudsman. I am still unclear about the functions. I am more particularly interested in the relationship between your office and the JAG. Does a person first come to you and then go through the JAG if they want an appeal? Who gets what? How does it work? How do your judgments impact the JAG's decisions and vice versa? I will throw in harassment. I always want to know about harassment cases.
Ms. McFadyen: I will deal with the JAG issue first. The JAG's role is to give legal advice on military matters to the chain of command and the Department of National Defence. We are separate from the chain of command and the management of DND. We operate separately from those matters. If someone complains to us about something the DND/CF organization has done, they come to us. We do not really have any interaction with the JAG. The JAG gives advice to the chain of command. Sometimes it might be that we receive a complaint and have to deal with the JAG to determine how certain decisions were made within the CF. That is the extent of our relationship.
Our mandate deals with all matters relating to National Defence and the Canadian Armed Forces. The Veterans Ombudsman's constituents are anyone receiving services from Veterans Affairs. For instance, Veterans Affairs deal with disability pensions under the former Pensions Act; they have programs for vets. Those are the type of things that fall under his mandate.
Our mandates are different. They relate to DND/CF; the mandate of Veterans Affairs relates to matters that deal with Veterans Affairs.
Senator Nancy Ruth: In your charts, the benefits column is the highest. It represents the outstanding number of cases that you receive. What is the difference between benefits here and benefits for veterans?
Ms. McFadyen: These are benefits that would be received by DND and CF members.
Senator Nancy Ruth: Active members?
Ms. McFadyen: Yes, active members. It would probably also cover former members if it was a DND matter. For instance, the Canadian Forces Superannuation Act falls under DND. If someone was complaining that they were not getting the pension that they were supposed to receive or that it was taking too long to get it, those matters would fall under our jurisdiction.
Senator Nancy Ruth: My understanding is that the JAG office does sexual harassment complaints and labour law. How is that different from what you are doing here?
Ms. McFadyen: You mentioned a harassment complaint. Someone could come to us and say, "I have been harassed by someone within the chain of command and I do not know what to do." We would refer them back to DND unless there was a compelling circumstance. Our role as an ombudsman is to ensure that DND/CF is able to ensure that their administrative processes are working properly. If there was not a compelling circumstance, we would send them back to have it looked at by DND. At the end of the day, if the matter had been reviewed properly by DND and if the person felt that they had not been treated fairly or that their matter had not been looked at, then they have the right to come to us to ensure that they were treated fairly and that the processes ran properly.
An ombudsman's goal is to ensure that the government administration processes are working properly. We try to give them a chance to work properly, if they can. After a grievance has gone through and the harassment is reviewed, if a person is unhappy or felt that they have not been treated fairly, then they come to the ombudsman's office. We have the right to review their case and make appropriate recommendations so that DND can fix it. It might help that individual complainant, but it will help to ensure that the next person does not have to go through the same type of problems.
Senator Nancy Ruth: What do you do when you see a trend in cases? For instance, this benefit column is huge. What do you do in terms of changing policy?
Ms. McFadyen: If we see a trend, sometimes that means we need to do a systemic review of a matter and make some recommendations that will help everyone. For instance, we have received complaints from people who were not getting proper treatment for what they felt was post-traumatic stress disorder. We saw quite a few come in and we knew that we needed to look across Canada to see what was being done so that we could make recommendations to help the most people possible. When we see a trend, we try to deal with it and ensure that we can help as many people as we can.
Senator Ringuette: Your mandate also includes civilian employees.
Ms. McFadyen: It does, yes.
Senator Ringuette: Out of 1,454 cases last year, how many would be civilian employee cases?
Ms. McFadyen: We do not have that many on the whole. My best opinion of why we do not do that is because civilian employees can have unions and they have another avenue for trying to resolve their problems.
Senator Ringuette: Actually, they have two other avenues. They have the union and they have the entire Public Service Act at their disposal. That is why my question is: Why is this part of your mandate?
Ms. McFadyen: Perhaps Senator Eggleton would have a better idea than I do because he was around in 1998. In the Department of National Defence and the Canadian Armed Forces, everyone works closely together. It is unique in that way from other countries because the civilian side and the uniformed side work well together. It was felt at the time that the civilian members should have the right to bring a complaint to our office because they are also in a situation where they may see something that has not been done properly and they should have the right to voice their complaint to us.
I am looking at our statistics and it appears that in fiscal year 2010-11 we had 79 complaints from civilian employees. As you said, they do have other avenues; they are not like our Canadian Armed Forces members who do not have a union and who do not have someone who can bring forward their rights for them. That is why we receive most of our complaints from CF members.
Senator Ringuette: I do not see the justification for them to have access to your process when they already have two other means at their disposal for their grievances.
Ms. McFadyen: I believe it was included because, being a part of the Department of National Defence, they might see certain things that need to be brought to the ombudsman's attention. They work closely with Canadian Armed Forces members. In 1998, there was a real strong push to ensure openness and transparency within the department and the Canadian Armed Forces, and it was felt that they should have the right to come to our office as well. When they do come to our office, for instance, if they are coming to us for a grievance or something that deals with them personally, we always make sure we give them advice to contact their union to ensure they get proper advice on what they should do.
Senator Ringuette: Out of the 79 complaints, which ones would be the most repetitive?
Ms. McFadyen: I am not able to answer that off the top of my head. However, we can check to see what the general trend is from civilians, if would you like us to get back to you with that information. Off the top of my head, however, I could not say what it was. I am guessing that it is about the grievance process and that it is slow. Classification grievances are also a thing that we have seen from civilian members.
Senator Ringuette: Do you differentiate between public service, civilian employees or contract civil employees?
Ms. McFadyen: The civilian employees would be people employed under the Public Service Employment Act with National Defence. That is what that means. Someone who is a contractor with DND would not be a constituent under our mandate.
In the past, we had a contractor who brought a matter to our attention. They were a contractor working in a clinic in Nova Scotia, dealing with people with operational stress injuries. They saw a concern about CF members not getting proper treatment. When they came to us, they were not a constituent of our office because they were a contractor. However, they brought something to our attention that we felt needed to be investigated. We then investigated it. Under our mandate, the ombudsman can advise the minister that he will investigate something on his own motion. That is how we dealt with that.
Even though contractors do not fall under our mandate, if someone contacted us and it was something that dealt with a potential unfairness to CF members, we would look at it because our role is to ensure they are treated fairly.
Senator Ringuette: What if a civilian employee, a contractor, had been an officer?
Ms. McFadyen: An officer?
Senator Ringuette: In the past — a retired officer under civilian contract.
Ms. McFadyen: It would depend on the issue. In the past, if someone was a former CF member employed under contract with DND and it was a matter that dealt with their contract, then it was not a matter that we should look at. We try to help people as best we can, so if it does not fall within our mandate we might tell them where they should go to deal with the issue. It would depend on whether the issue fell within something we should be looking at.
The Chair: I would like you to go back and clarify a point that came out of Senator Eggleton's question about the referral of a tentative resolution to legal services that seems to be an impediment to the smooth handling of your matters.
I asked you to compare National Defence to another government department. The Public Service Employment Act requires certain grievance procedures to be set up, and the deputy minister handles all of that. However, in DND you have an ombudsman who does that, not the unions. What is the delegation of authority to the legal services that you made reference to?
Ms. McFadyen: In the Canadian Forces the CDS is the final authority in the grievance process. When he is dealing with an issue that has to deal with giving money to the soldier, he does not have the right to give compensation. In the Government of Canada we have the ex gratia claims policy, which is a Treasury Board policy and applies government wide. Under that policy, Treasury Board has delegated to the deputy heads of departments the ability to settle claims.
In DND the deputy head is the deputy minister, and he has delegated the authority to send claims to lawyers within the Canadian Forces/DND legal services. That is how money claims against the Crown get settled. It is under that policy.
When the CDS is looking at a matter and at the end of the day he finds that a soldier has been treated unfairly, if money needs to be paid out, he does not have the authority to do that because the authority to settle claims in the Government of Canada falls under that Treasury Board policy and goes to deputy heads. The CDS is not a deputy head. He then says he does not have the authority to settle this, even though he feels someone was treated unfairly, so he sends it over to legal services because they have the delegation to review that. They have it on behalf of the deputy minister.
When they get it, in my experience from the files that we have seen at our office, they look at it using the lens of what the Canadian Forces redress of grievance system was set up to do, which was to be an easy process that recognizes the relationship between Canada, the Canadian Forces and its military members to deal with issues.
They consider whether there is a legal obligation to pay out that money. Usually they find that there never is because there is no employment contract between the Crown and the military member given that they serve at pleasure. In most cases they never get that issue resolved for them.
As mentioned, in 2003 former Justice Lamer made a recommendation that the CDS be given that authority. That has not yet been implemented. We also reviewed the matter, given all the complaints we received on this matter. We issued a report in 2010, again making the same recommendation.
The Chair: Did Justice Lamer make that recommendation in a case that went to the Supreme Court?
Ms. McFadyen: He did a five-year review of Bill C-25, the changes made in 1998 to the National Defence Act.
The Chair: Then another review was done, and it was again recommended?
Ms. McFadyen: We did a review, an investigation.
The Chair: Internal.
Ms. McFadyen: We made a public report that in our opinion this needed to be fixed.
The Chair: I assume we will easily find those on your website.
Ms. McFadyen: It is available on our website and easy to find. If you cannot find it, just contact our office.
The Chair: It seems to me to be something that should be resolved. If another committee raised the issue again, perhaps we will get some attention. I am glad you raised it.
Thank you, Senator Eggleton, for bringing it to our attention.
On behalf of the Standing Senate Committee on National Finance, Ms. McFadyen, thank you very much for being here to help us understand the role of the ombudsman within the Canadian Forces. I understand you have been on leave, so welcome back. This was baptism by fire. You came on short notice and did a fine job.
Ms. McFadyen: It was my pleasure.
The Chair: Colleagues, that concludes this meeting. I will ask the steering committee to stay behind for a short meeting. Apart from that, we will see you at our normal time tomorrow, unless otherwise advised.
(The committee adjourned.)