Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 2 - Evidence - November 27, 2013
OTTAWA, Wednesday, November 27, 2013
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 3:14 p.m. to study the subject-matter of those elements contained in Divisions 5, 10 and 11 of Part 3 of Bill C-4, A second Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
My name is Kelvin Ogilvie and I am chair of the committee, a senator from Nova Scotia. I will ask my colleagues to introduce themselves, starting on my left.
Senator Eggleton: Art Eggleton, senator from Toronto, deputy chair of the committee.
Senator Day: Senator Joseph Day from Hampton, New Brunswick.
Senator Seth: Asha Seth from Toronto, Ontario.
Senator Enverga: Tobias Enverga from Ontario.
Senator Stewart Olsen: Carolyn Stewart Olsen from New Brunswick.
Senator Seidman: Judith Seidman from Montreal, Quebec.
The Chair: I would remind committee members that we are continuing our study of the divisions of Bill C-4. We have a very tight schedule, and I will end each part of the session on the time that we have agreed to. The first session begins now and will end by 4:15. The second session begins immediately after that and will end by 4:45. The next session will begin immediately after 4:45 and end by 5:15, and we will then go into the final session, which will end at 6:15. I want to remind you to keep your questions focused and sharp.
In that regard, I'm pleased to welcome to the committee John Larlee, Chair, and Dale Sharkey, Director General, of the Veterans Review and Appeal Board.
Mr. Larlee, please.
[Translation]
John D. Larlee, Chair, Veterans Review and Appeal Board: Honourable senators, thank you for this opportunity to appear during your consideration of the amendment to the Veterans Review and Appeal Board Act, introduced through Bill C-4.
[English]
This amendment reduces the maximum number of permanent board members from 29 to 25, with no impact on our current complement. Today, I would like to put the amendment in the context of our workload and to clarify some of the information given by other witnesses. First, let me say a few words about the service we provide to veterans, military and RCMP and their families.
The board offers an independent avenue of appeal to those who are dissatisfied with disability benefits decisions made by the Department of Veterans Affairs. Our role is to ensure that veterans obtain all the benefits they are entitled to under the law. Last year alone, the board awarded new or increased benefits to 2,000 applicants for service-related disabilities.
Veterans have the right to two levels of redress at the board: a review hearing and, if they remain dissatisfied, a subsequent appeal hearing. At review, veterans have the opportunity to tell their story and to bring forward new information. The appeal level is another opportunity to submit new information and arguments. At both levels, veterans have access to free representation by the Bureau of Pensions Advocates or the Royal Canadian Legion.
Now let me turn my attention to the issue before us today. The proposed amendment to reduce the maximum number of permanent members from 29 to 25 will bring our legislation in line with our actual workload requirements. We believe that our current and future needs can be met with an ongoing complement of 25 fully trained members. That is because the board is now receiving 25 per cent fewer applications than five years ago.
We have managed our workload for the last three years with no more than 25 members. During this time, we have been able to hear all cases brought forward by representatives while getting decisions to veterans faster.
Today we are operating with only 22 members, and we need additional members to help us with the work. As we anticipate new appointments, our members are carrying heavy workloads and hectic travel schedules. Veterans are waiting a little longer to have their cases heard but, that said, we have avoided any significant delays in getting review and appeal cases heard, thanks to the hard work and dedication of our members and staff.
We do have a higher number of pending reconsiderations, which are requests to have final and binding appeal decisions reopened. To get answers for these veterans, we will focus on hearing the majority of the 84 pending requests in December and January. We will also continue to carefully monitor our workload and make the best use of the members we have to get cases heard.
[Translation]
Allow me to now give you an idea of how technology is being used to hold board hearings.
For over 10 years, the board has been using videoconferencing to accommodate veterans' requests for more timely hearings.
[English]
The ombudsman and our stakeholders have also told us that timeliness is important. We couldn't agree more. Video conferencing is one of the tools that would help us get to cases heard. It adds flexibility to our scheduling and at the same time improves veterans' access to hearings.
Of course, our goal at every hearing is for veterans to be satisfied that they had the opportunity to clearly express their case. Last year, we did ask applicants for feedback on their video conference hearings. The majority told us that they had a positive experience.
Before closing today, I would like to give some context and clarity to remarks made here by a former board member. Please understand that the role of quality review and legal staff in any tribunal is to support the work of members by providing analysis and advice. Staff advice is not intended to persuade. Rather, it supports the members in their careful review of the evidence, arguments and the relevant law. It is all about a fair process for veterans, which ultimately is our mission.
Thank you, honourable senators, for this opportunity to explain the amendment to our act and the important work we feel we do for veterans and their families.
The Chair: Thank you very much. I know you're both available with regard to clarifying questions, so I'll turn the meeting open to my colleagues.
Senator Eggleton: Thank you for being here.
First, in what you call the reconsideration and what other witness witnesses have called the reconsideration phase, I understand that that is backlog. They tell us it is backlog. Some have been going on for more than a year. Now, you may cite some good percentages overall, but some of these veterans having to wait over a year is disgraceful.
Mr. Larlee: I agree that that is far too long to wait and we have undertaken to deal with reconsiderations, but I would say that it's a very small number that would ever have to wait that long because our objective is to have all our cases heard in a very reasonable amount of time. As I stated in my remarks, we made a decision back in October to address the delays that we have in reconsiderations.
Again, my executive director here has more of the actual statistics on the number of reconsiderations. I know that one waiting that amount of time would be quite unusual.
Senator Eggleton: I agree with you. Never mind the statistic. In and of itself, these are people who have put their life on the line for this country. Surely we owe them decisions in a timely fashion.
Let me also ask you about teleconferencing. You say you got some good feedback from people who went through video conferencing, but the Royal Canadian Legion, the Dominion Command, were here, and they're getting different feedback. They say people don't like doing that and that the veterans like to eyeball the people on the review panel, and the panels like to eyeball the veterans. Actually having this face-to-face kind of thing is far better.
You may say, well, they still have the choice to do that if they want, but you're talking about trying to expedite things through video conferencing and teleconferencing. That could be a little pressure put on these veterans to agree to go along with it because they might save months in terms of time, but what they were telling the Legion and what the Legion told us is that they wanted to be face-to-face.
Mr. Larlee: I agree that some veterans prefer to have the face-to-face, and our objective is to treat veterans with all the respect that they fully deserve because of our commitment through our staff and through our members to provide them with a fair and expeditious hearing and to have a decision rendered in a very reasonable time.
I agree that some individuals, veterans, would prefer and will prefer to have face-to-face hearings. I was referring as well that the pilot project we conducted with video conferencing because of the improvements in technology and the manner in which our non-adversarial proceeding takes place was very well accepted, and the majority of those who participated in the pilot project a year ago found that there was no difference. That's not to say there are others who wouldn't prefer to have the face-to-face.
Senator Eggleton: Can you assure us there would be no pressure enticements for veterans to agree to teleconferencing or video conferencing if their preference would be a face-to-face meeting?
Mr. Larlee: Yes, because the choice of the type of hearing to be undertaken, whether it would be video conferencing or the face-to-face, would be done in consultation with the veteran with his or her representative and would be considered when the scheduling is taking place.
Senator Eggleton: Another point raised by the Legion and a couple of other witnesses was that there were more lawyers now being appointed to the review board, and it seems to change the tone of the hearings. Lawyers will have a tendency, particularly with a lot of courtroom practice, of being a little bit more courtroom-like in how they approach these things, whereas the veterans are saying, "Well, you're really there to try to help us, not to give us the third degree." Can you tell me about that?
Mr. Larlee: I think that everyone that sits on the board is committed to assisting veterans and to providing them with the benefits they are entitled to and to making sure they get everything they're entitled to. I think the number of actual lawyers on the board has decreased, but I believe my director general has the numbers. The number of former retired military and RCMP has increased in the time I've been there.
Senator Eggleton: That would be a good thing, with all due respect to my lawyer friends.
The Chair: Do you have some quick statistics?
Dale Sharkey, Director General, Veterans Review and Appeal Board: Yes. There are six lawyers on the board. In addition, we have eight members who have Canadian Armed Forces experience and one individual who was with the Royal Canadian Mounted Police, and we also have three medical individuals. Now, they're not mutually exclusive because some people may have military experience and be a lawyer or military and a nurse. However, there are only six lawyers of the 22 at this time.
Senator Seidman: It was helpful for you to address the issues that we encountered in previous witness testimony. I would like to make sure I understand that there are three processes that come in front of your appeal board, if I understand correctly, and that would be reviews, appeals and reconsiderations. Is that correct?
Mr. Larlee: That's correct.
Senator Seidman: About the backlog that we talk about, Gordon Moore from the Legion said he met with you on October 26, when you said there is a major backlog. I'd like to know what backlog he would be referring to there.
Mr. Larlee: I guess I wouldn't phrase it as a backlog. I'd phrase it as delays in some of our hearings. That would be because we're not at our full complement of 25. As I stated in my opening remarks, with a full complement of 25 members working, we can adequately deal with the workload and, therefore, have no delays. In the past, we've had what my director general would categorize as no backlogs. We've had very few delays.
We put an emphasis on hearing appeals and reviews, which are the first two levels, because the veterans are entitled to have a decision as soon as possible, an appeal being final decision. An appeal can be looked at again only under a reconsideration if an error of fact or an error of law has been brought forward, which becomes more of a legal argument and sometimes takes more time for the veteran's representative to put together the necessary case. Also, it has to be heard by the same three members that heard the appeal; so that has scheduling concerns and difficulties. In the one case cited by Senator Eggleton, one of our members was on leave and, therefore, it was difficult over a period of time to get that reconsideration scheduled.
Ms. Sharkey: To put it in context, we do about 4,300 decisions a year, and of those, only 196 are reconsideration applications. The Legion had about eight heard so far this year, and I believe they have thirteen registered, of which only one is ready to proceed in December.
To put the numbers a bit in context, reviews are about 3,200; about 900 and some odd are appeals; and a small number, about 3 to 4 per cent, are reconsiderations.
Senator Seidman: Of the 196 reconsiderations, eight have been heard and thirteen more are registered to be heard. Is that correct?
Ms. Sharkey: That's for the Legion. We have about 86 to be heard, and we will be clearing up the majority of those in December and January. We've decided to do a blitz in October, as the chair mentioned, and additionally we will be reviewing them on a quarterly basis to make sure that we are hearing them on a regular basis and devoting resources to that.
Senator Seidman: Now that you are giving us numbers, which is important to actually put things in perspective, would you be able to tell me roughly how many cases a year each member of your board might hear? What is the general workload? One of the questions that came up last time had to do with the workload of the members of the board.
Mr. Larlee: Yes. Each member on average would hear 400 cases per year. Remember, panel reviews are two members each. They'd sit on approximately 400 cases and be writing 200 decisions. On appeal, they sit on 500 cases and would be writing —
Ms. Sharkey: — approximately 200 as well because the writing portion is divided amongst the three members. On average, it's between 400 and 500 at review and at appeal.
Senator Seidman: How many of those cases would you say would be by video conference?
Mr. Larlee: At present, video conference would be 4 per cent of our hearings.
Ms. Sharkey: Yes, 157 cases were by video conference last year.
The Chair: We understood that to be a pilot project. You used the term "pilot project."
Ms. Sharkey: We did a pilot project, but it's also on request.
The Chair: I just wanted to clarify that.
Senator Seidman: I was going to ask you, and now you say it's on request.
Another issue came up: Did these vets understand that they could have a choice between a video conference and an in-person meeting? That became quite a critical point. The issue was that they might feel pressured to just have a video conference because they wouldn't be given a clear choice and wouldn't fully understand that they could appear in person. Is that choice, that decision, given directly to them?
Mr. Larlee: Yes, it would be; and it would all be done in consultation with their representative. Keep in mind that veterans are represented by the Royal Canadian Legion or the Bureau of Pensions Advocates. Those at the Bureau of Pensions Advocates are lawyers and would be counseling the veterans in that regard.
Senator Seidman: The Standing Committee on Veterans Affairs in the House of Commons did a study called Restoring Confidence in the Veterans Review and Appeal Board. Their report was published in December 2012. One of their recommendations asked that the Veterans Review and Appeal Board and Veterans Affairs Canada both review the report and respond, provide an update on their progress, and implement their recommendations by the end of 2013. Now that we're approaching the end of 2013, my question is: Have you done so or are you about to do so?
Mr. Larlee: Yes, we're in the process of preparing our response.
Ms. Sharkey: We hope to have it with the committee by the one-year point, December 10, I believe it is.
Senator Seidman: Do you feel confident that you have responded to their recommendations in a good fashion?
Ms. Sharkey: Yes. Some are still in progress, but the majority of them have been acted upon.
Senator Enverga: Thank you for the presentation. A lot of my questions have been answered.
Going back to video conferencing, I notice it's one of the critical tools you have right now to make it faster or to expedite decision-making at the review board.
My question is: By video conference, even if it's a pilot project, how many appeals were done because they don't like the video conferencing? Was there ever a time when someone said, "Can you review my review because video conferencing doesn't work well for me?" Does that ever happen?
Mr. Larlee: No. From my understanding, it's all been voluntary, and the reports we've had back from the survey we did with those who participated have all been very positive. They always make good suggestions, which we have implemented in our training programs, of things that they noted about the video conferencing, but none have ever, I believe, come back to the board to ask that they be reheard because of participating in video conferencing.
Senator Enverga: I know the review board has three members all the time. Is there ever a chance that only two are on the video and one is in front of the veteran? Does anything like that happen?
Mr. Larlee: On review, there are two members sitting. It's been a learning experience. Our members have become quite familiar with the use of the technology and make sure that the camera and everything are set up to get the maximum contact with the individual.
Ms. Sharkey: May I just clarify something as well? I think you're referring to the statement that the Legion made around having two members in the room and one member by teleconference. That would be at appeal, and there's no oral testimony by a veteran in that situation. There would be two members with a third member because there are three members; it's the second level of appeal. The two members would be in the room with the representative who is just providing a short documented argument for the case. That's quite different than what you were referring to at the review level with two members where there is a veteran providing testimony.
Senator Enverga: You mentioned that the review board is still learning; there's a learning curve to the use of this equipment. How long do you think it will be before you can go full blast or everyone will be trained to do video conferencing?
Mr. Larlee: Part of that is that the technology is improving at all times. Therefore, part of the process of the board members using video conferencing on a more regular basis is to become more familiar with the technology. We also have access to IT people there to make sure that everything works the way it's supposed to.
Senator Day: Mr. Larlee, Ms. Sharkey, it is good to see you again. I'm a bit of an interloper here; I serve on the Veterans Affairs Subcommittee, as you recall from having appeared before us. I'm very interested in any changes to legislation concerning veterans. I'm also involved in Bill C-4, of which this is a part.
Could you tell us first of all, with the Veterans Review and Appeal Board, do you have any jurisdiction under the New Veterans Charter? Do you have a role to play in the New Veterans Charter?
Mr. Larlee: Yes, we have the same jurisdiction under the New Veterans Charter as we had under the Pension Act. Cases come before us because we deal with the disability pensions, entitlement to the disability pension or award under the New Veterans Charter and assessments as well.
Senator Day: With so many new veterans as a result of our engagement in Afghanistan, I was surprised that you said your workload has gone down 25 per cent in the past five years. Have you made any assessments or predictions in that regard? Do the new veterans under the New Veterans Charter just not need the Veterans Review and Appeal Board attention that the older veterans needed?
Mr. Larlee: It could be, and Ms. Sharkey can elaborate, that the decisions at the first level, which is at the Department of Veterans Affairs, are more in line, more positive for the veteran and they're removing the need for them to come further to us. That is one response. The dynamics of the veterans from the traditional veteran — I'm talking about those World War II and Korean veterans — has moved now to today's military and those serving in post-Korea. I think the actual numbers are quite telling.
Ms. Sharkey: Yes, 94 per cent of the veterans that come before the Veterans Review and Appeal Board are either former or still-serving personnel or veterans of the Canadian Armed Forces and Royal Canadian Mounted Police, so only 6 per cent relate to survivors of Korea and World War II.
Senator Day: Only 6 per cent?
Ms. Sharkey: Yes.
Senator Day: Did I hear correctly that you are doing 25 per cent fewer applicants or clients? Is that correct?
Ms. Sharkey: Yes.
Senator Day: In the past five years it's gone down that much. Has it been a straight-line decline?
Ms. Sharkey: It's been a steady decline. I think last year we stabilized and this year we see it levelling off in the mid- 4500s. There are a number of reasons. More veterans are taking advantage of a departmental review, which is a more informal and expeditious process, and having success at that before coming to the board.
Also, the representatives counsel veterans on whether or not they have a case to proceed. It is always the veteran's right to proceed if they wish; however, they are very diligent in providing good advice to individuals about proceeding.
Like the chairman said, there's a fairly favourable rate of decisions with the department as well. Then there is the general decline of mostly World War II veterans. We slowly built up with the Canadian Armed Forces, but unfortunately the loss of those honourable veterans is greater than perhaps the increase of the modern-day veteran.
Senator Day: My time will run out fairly quickly and I wanted to get to the numbers: 29 is the total number of permanent members you are entitled to have now. This legislation would take that down to 25. You're telling us right now you're operating at 22, but that's not very good for you and you'd rather have a few more appointments to get back to 25. Did you do any study to determine that 25 is the optimal number?
Mr. Larlee: We've been operating since 2009-10 with 25 or fewer members, and with the 25 we have been able to complete our workload without any delays or backlogs. We feel it has levelled off at 4,500, and with the full complement of 25 members we would be adequately staffed to conduct the hearings that we have. There's also the fact that under the legislation if there should be a spike or a drastic change, there is authority for the appointment of temporary members. Now, when we talk about temporary members, these would be full-time members, except their term cannot exceed two years and they can be reappointed for a further year. That's also the ability for temporary members to be appointed in that capacity until they can be appointed permanent if we're at the full 25 complement and need extra.
Senator Day: Was this number of 25 a result of you looking over a number of years and then determining? Was it your recommendation that this legislation should change to 25?
Mr. Larlee: Yes, it was in the sense that since 2010 we have been in the position to work with 25 members.
Senator Day: Is this the result of a budget cutback and you're looking for places you could save money and thought you could operate with 25 instead of 29? Was there another reason that you've gone down to 25?
Mr. Larlee: It demonstrates the reality of what we need to do our work. That is the reason the number 25 was chosen.
Senator Day: Was your budget this year compared to last year?
Ms. Sharkey: It is 11.5 and we have had no increases or cuts to our budget since 2006.
Senator Day: This was not budget-driven then? You're telling me that?
Ms. Sharkey: It better reflects the reality of what we require to do our workload and has been for five years. We're able to have a predictor from the volume of cases at the department, so a year out we can look to see the number of decisions that are being rendered by the Department of Veterans Affairs. Typically about 9 to 10 per cent of those will come on to the board, and historically that's been a pretty accurate forecast tool — simple but accurate.
Senator Day: No budget decrease or increase over the past several years.
Mr. Larlee: Our budget has been the same since 2006 and we've absorbed, within that budget, all the additional functions we have had to carry out within the work we do. Under the Financial Administration Act, we are an agency and we have to do all the reporting that a small agency has to do. We had to assume that within the budget allotted years ago.
Senator Stewart Olsen: If you were to decide that teleconferencing was not an optimal way to interview people, would that have any impact on the reduction to 25 on your board?
Mr. Larlee: If I understand your question correctly, video conference is not necessary for us to be able to conduct hearings with the complement of members at 25.
Senator Stewart Olsen: I thought you tried this as a faster way to review the cases so that video conferencing with someone would probably get heard faster than if they waited for the team to come around.
Mr. Larlee: Yes, in certain parts of the country where we have low-volume cases. When we're doing our scheduling, we do it many months out. We do an annual schedule based on what the Bureau of Pensions Advocates, which represents the veterans, and the Legion have in consultation with us. Therefore in some areas of the country where there is a very low volume, video conference becomes something for them to consider.
Senator Stewart Olsen: That's one of the reasons I would put to you that for soldiers or peacekeepers or veterans coming to you with PTSD, I would think that video conferencing would be a very frightening thing. I do know from hearing from veterans that it is a frightening thing. They do it because their case will be heard faster and they'll have a chance to be heard faster. So that's just for your information.
How long after you've done your assessment would you expect to put a report together and for a decision to come to the veteran?
Mr. Larlee: Our service standard is that within — I think 88 per cent compliance within 6 weeks they get their decision.
Senator Stewart Olsen: Six weeks, thank you.
Mr. Larlee: Less than that?
Senator Stewart Olsen: So six weeks for that.
How many peacekeeping veterans — not actual theatre-of-war veterans, but peacekeeping veterans, those not engaged in war-time activities, are coming to the appeal board?
Ms. Sharkey: I don't have that information. I may be able to get it.
Senator Stewart Olsen: I'm looking at the reduction of numbers. I'm looking at more and more peacekeeping veterans coming before you as they become older. Are you factoring that into your reduction numbers?
Mr. Larlee: In that number, we're using the actual veterans who are applying to have their decisions from Veterans Affairs brought to the board through reviews, appeals or reconsiderations over the period of the last number of years. We've been consistent now at that number of 4,500.
Senator Stewart Olsen: I do understand, but I think that there are a lot of military and probably RCMP who have been injured on the job while they were in the military. As they get older — knees, backs and whatever — they are going to be coming to you, I would think. Are you forward planning for anything like that? And if you found a high volume, would you anticipate coming back and saying that you are going to need more people on the board to augment this 25? Is there a process by which you could request that?
Mr. Larlee: Well, as I explained earlier, there's always that process to request of the minister an amendment to increase. But we have that ability — or the minister has the ability — to utilize the temporary members.
One of the dynamics of members on the board is that they are Governor-in-Council appointments. They are staggered appointments in the sense that they could be three years or five years, and they all finish at different dates. Therefore, it is a dynamic task to always have a full complement.
We have good communications with the minister's office. Our objective is, of course, to make them aware of when appointments are coming due and whether there's going to be a reappointment or a new appointment, to keep them advised. It's a process that goes through the Privy Council Office and the Governor-in-Council, so sometimes those take time. We are waiting for appointments at the moment to bring us up to our complement of 25.
Senator Stewart Olsen: I see. Thank you.
Senator Cordy: Thank you very much for being here. Just for clarification: You're both full-time staff members at Veterans Affairs Canada?
Mr. Larlee: No. I'm a GiC, Chair of the Veterans Review and Appeal Board. We're an arm's-length body. We're under the portfolio of Veterans Affairs Canada. When you said Veterans Affairs, I'm thinking of the department. We don't work for the department; we review department decisions.
Senator Cordy: You are arm's length.
Mr. Larlee: Yes.
Senator Cordy: But your funding would come from Veterans.
One is saying "yes" and one is saying "no."
Ms. Sharkey: We have our own separate vote — yes, line item. Our finances are not linked with Veterans Affairs Canada — the department — at all.
Senator Cordy: So directly through Finance?
Ms. Sharkey: It's an allotment directly through Finance, yes.
Senator Cordy: In answer to Senator Day, you said that your budget has been the same for the past six years; it has not been cut but it has not been added to. Salary costs and travel costs have gone up, so what are you doing? Even though you didn't get a reduction, basically no increase is a reduction over six years. How are you dealing with that?
Mr. Larlee: We have absorbed those additional costs in the amount that's allotted to us.
Senator Cordy: Could you be more specific? I get that you would have to absorb the costs, but are there longer wait times for reconsiderations? Is there less travel and more video conferencing? What are you doing? I mean you've only got so much money to spend.
Ms. Sharkey: Like every organization, we have been constantly looking for ways to be more efficient — to review our discretionary spending — so that we really focus on spending only what's required to support the program for the veterans. We have also been able to reduce some of our staff through attrition.
Through a number of reviews of our budget, we've been able to absorb those costs over the years. Just in travel alone, changing the kinds of travel we book and in doing the annual forecast, we've been able to book further ahead. It's amazing just in that how much you can save. Probably one of our biggest expenditures is travel.
Senator Cordy: So you've got fewer staff and you've made significant changes to your travel by booking ahead?
Ms. Sharkey: Yes, and how we schedule people. It's a bit of a science — how you send someone from Prince Edward Island to Victoria versus sending someone from Edmonton to Victoria. And the class of tickets that are booked. There is latitude with Tango. They all have different prices. We've been able to do a number of things.
Plus, we had through the years some additional discretionary funds that we were able to also use to cover additional costs. But, in fact, if you look at our operating expenditures, they've decreased steadily for the last five years, and our "operating" would be discretionary. Our salaries are less discretionary because we have them already allocated for the members of the board and the staff that we have.
Senator Cordy: Going back to Senator Stewart Olsen's comments about video conferencing and that veterans actually have a choice whether it is face to face or video conference. We heard from Legion members last week that veterans are not as comfortable with video conferencing. Certainly there are times when this committee has video conferencing, and it's a great plan B, but for me personally, it's not as good as the face-to-face, eye-to-eye contact of having witnesses sitting at the end of the table.
When they are actually given the choice, what would be the time discrepancy? For example, if you video conference, it will be three weeks, but if you do face to face it might be up to 18 months, we heard. What would be the time difference between the choices that they would be given? If it's a significant period of time, then it really isn't much of a choice.
Mr. Larlee: Our schedule is related also to the travel, not only of the members to different areas of the country, but also whether it's a representative of the Bureau of Pensions Advocates, which by the way, would be representing most of the veterans that appear at review. I think the Legion would be a very small number, but that is not to say that the Legion doesn't have an argument to make that they feel their people would prefer face to face.
Getting back to the fact that if we send our members to certain areas of the country and the representative who is bringing cases forward does not have more than — I think it's what? One day or two days of —
Ms. Sharkey: Two days.
Mr. Larlee: Two days. Normally a hearing week for our members when they go to a location is that the travel day is Monday, and they hear cases Tuesday, Wednesday, Thursday and Friday morning. They hear 20 cases a week, each member writes 10 decisions, and they travel back to be home for the weekend. So they're preparing for their cases and things like that. So when there are areas where there is only a day of work, it isn't economical on a regular basis. Sometimes the advocates ask us to postpone because they don't have the work for our members to go there.
Senator Cordy: My question actually was: What's the time difference between a face-to-face meeting for reconsideration or appeal and a video conference meeting? Would there be no significant difference between the two? That's not what we heard last week or not what I recall hearing last week.
Ms. Sharkey: I can't say what the exact time difference is because I don't know how representatives counsel their clients, the veterans. Veterans are reimbursed for their travel, so they may choose to travel to Winnipeg as opposed to an area such as Saskatoon where we may have hearings. We have very few hearings in that location of the country.
It's difficult to say how much time is saved because we do an annual calendar. We provide as many opportunities as we can, which includes video conferencing, for veterans to access a hearing. Some may choose to travel because they have greater urgency, some may choose to wait, and some may choose to access video conferencing.
Senator Seth: Thank you very much for being here. You are giving us quite a bit of knowledge.
My question is very simple. In your opinion, is the number of board members sufficient? Could the number be increased or decreased, or should it stay the same? Could you explain this a bit more?
Mr. Larlee: Are you talking about the number of 29 or the number of 25?
Senator Seth: Twenty-five.
Mr. Larlee: With 25, we feel that we can complete the amount of work that is presented to us for hearings without any delays, be able to complete the work within our service standard, conduct what is necessary to make sure that veterans receive their decisions in a timely fashion, and maintain our service standard that we're doing. We can get it done with 25.
Senator Seth: So 25 is good enough. Thank you.
[Translation]
Senator Bellemare: My questions have already been answered, Mr. Chair. I wanted to know about video conferences. Thank you.
[English]
Senator Segal: I apologize for being late.
There's quite a dissidence here between what you were saying and what the Legion said when they appeared before us — not a question of anybody having their good faith or best efforts to do the right job appropriately well. There was a sense that colleagues would have experienced of immense frustration on their part with the notion of there being no service standards in place relative to how appeals are managed from your court hearings. There are service standards for other things, which is very constructive.
There was a sense that the delay was not because of any lack of best efforts on the part of you and your colleagues but of some of the scheduling issues that you referenced and the fact that appeals have to be heard by different members of your board other than those who heard the original review, understandably. That gap troubles me, not because there's anything that I believe you're doing wrong or purposefully not attending to so as to provide the best measure of service you can; but sometimes you have your administrative and other duties and your financial obligations to operate within your budget, which is appropriate and constructive. Then you have the folks you're trying to serve who have their priorities, which may be, by definition, different.
Can you give me a sense of what you think the gap is between expectations of those who appear before you and the sort of work you think you are doing in trying to respond as best you can to those needs legitimately? Do you think there really isn't a gap and it's just a question of modest adjustments being necessary going forward?
Mr. Larlee: Well, I would say we work and strive to make sure that the veterans receive their decisions and that those decisions are well written in plain language to provide them with the reasons for the decision. We've worked very closely with the Legion in doing projects to have them and their membership tell us what is missing in a decision. We were very successful in working with them and having them assist us in making sure that we took the legalistic aspects in plain language for the decision.
Maybe I'm getting off track, but being a quasi-judicial body, we are subject to the Federal Court and we have the Federal Court telling us that decisions have to contain certain things. Working with our stakeholders, like the Legion, we've always worked to modify and strengthen our ability to relate to the veterans' concerns and needs.
Senator Segal: It strikes me that the largest gap, if I may be so bold, is this: You're saying to us, in the best of faith, that 25 is sufficient, the demand is declining, that is the reality and, therefore, you can operate comfortably within that context.
First, the veterans who appeared before us said that 25 is not sufficient because you never actually have 25 as people are on training, people are ill, and life is what it is. Therefore, that adds inordinate delay to their process. They are quite troubled that the Government of Canada isn't even making the appointments that you need on a timely basis, which is not your fault — order-in-council is what order-in-council is.
Second, you actually need more if you're going to have the core that you believe is necessary to do the job well, and certainly as they believe, but I hear you saying in a completely different fashion that you've got what you need, that that is not the question, and that the demand for what you have is going to be declining over time. That does strike me as two very different perspectives on the same process. Could you help us to understand?
Mr. Larlee: We've been able to manage with fewer than the 25 only because of the dedication of our staff and our members. As I stated in my remarks, we've had hectic travel workloads because we've had to take members who normally sit in Charlottetown and do appeals only and send them out across the country to do more reviews. That creates more conflicts in the sense that those members out hearing reviews can't sit on appeals. By the time that case gets to Charlottetown on appeal later, it causes scheduling difficulties.
I'm saying that because we've been operating with fewer than the statutory number of 29 — a maximum of 29. Since 2010, as we stated earlier, we haven't had more than 24 or 25 working members, and we've been able to adequately cover the case load.
Yes, we need a full complement of 25. Yes, I have a good relationship in communicating with the minister's office to make them aware of our needs. I'm assured that they're addressing that and that we're awaiting appointments in the coming months. That's the most I can do as far as making them aware of our needs. That is my relationship with the minister's office.
Senator Chaput: My question is really supplementary to Senator Segal, who did ask my question.
Now that you will have a board of 25 as compared to 29, how can you ensure that you will have the full 25 members? I heard you say that you've been able to manage with less. What happens if you have fewer than 25? Nothing guarantees that you will have the full 25 when before you didn't have the full 29. Is that right?
Mr. Larlee: Well, the system of appointing members is not changing. The Governor-in-Council appointments are made on a certain date and they end on the term date, whether it's three years or five years. Sometimes there's an overlap when new members come on. So there's always going to be a period and that's why we feel we can go to 25 and keep 25. What we've discussed, as was mentioned, are the temporary members. Keep in mind that temporary members are full-time members, just as much as the permanent members. It's a method for us to not only maintain our complement, if we can go in that direction, but it would cover off for situations where we feel we don't have the full 25.
The Chair: I think, Mr. Larlee, what we're hearing is that the committee understands that human nature being what it is, not all 25 of the board of 25 will be available on a given day. You've outlined mechanisms that you can use to help keep your complement up to 25 because you clearly indicated you need a complement of 25.
I guess we're asking if you are going to vigorously use your opportunity to appoint temporary members to ensure that on an ongoing basis you have a complement of 25 active members available. When I say active, I mean ready for service on the board.
Mr. Larlee: Sir, I don't have the authority to appoint temporary members.
The Chair: No, but you have the authority to request them.
Mr. Larlee: Oh, yes.
The Chair: That's my point.
Mr. Larlee: Yes.
The Chair: Okay. We are going to declare this session complete and I thank our guests very much.
We are now looking at Division 5 dealing with the Canada Labour Code. We have with us Ted Koskie, a lawyer from Koskie-Helms, Barristers and Solicitors.
I'm going to remind you that this session will end precisely at 4:45 or before and therefore I will limit questions to one per senator maximum. You may not all get your questions in, so be very efficient with regard to asking them; no long preambles.
Ted Koskie, Lawyer, Koskie-Helms, Barristers and Solicitors: Thank you, Mr. Chair. I appreciate being invited. It's an honour and I do take it as a duty and take it seriously.
I was asked to comment only on a small part of Bill C-4. It's a budget implementation bill and yet it affects provisions related to health and safety. In the material that I've provided, what I've tried to do is give a bit of a tool that would assist the committee in looking at the provisions that are being dealt with but to also provide an overview. I did that mainly because I was advised that I wouldn't have an awful lot of time, so I'm going to endeavour to restrict my comments to five or so minutes and leave time for a discussion.
Frankly, I think that the materials I've supplied have hopefully distilled this to what I would consider to be two or three significant changes. The first and perhaps most contentious is the definition of "danger." The second is the role of the minister. The third, which I don't intend to spend much time on, addresses what I would categorize as a change in the onus or perhaps a bit of detailing in terms of what is required of an employer in the course of investigations.
Now one of the difficulties that an individual like myself has — and I heard one senator talk about lawyers and being one; I'm not overly sensitive, by the way — when looking at legislation is sitting back and trying to get some sense of the intent. In terms of these particular changes, it is very difficult to get any sense of that because the intent is really not stated.
I was delighted when I had initially heard there was a summary or background for the bill and discovered there was a paragraph that actually dealt with it which, again, didn't enlighten me a great deal.
The best that I can say when there isn't an intent stated is that these provisions appear to assert what I call a different command and control structure. That's not meant to be terribly dramatic, but at the same time the difficulty we always have is that the proof lies in the details and, unfortunately, we don't have them.
Having said all that, I think we seek provisions that are particularly looking at questions of investigation and what I'll call enforcement. There is an absence or something which, in my view, appears not to be addressed and that is the question of prevention. Perhaps I can speak about it in the context of Saskatchewan, the province I come from. Oddly enough, Saskatchewan has the second highest workplace injury rate in the country. It is second to Manitoba. From time to time, I think we dance back and forth with Manitoba as to who actually has the highest rate.
When trying to speak to people, or at least in the course of my practice, the only explanation that tends to come from those who have expertise in the field is to attribute it to an agrarian background. They tend to say that there is this attitude that we have to get things done, and getting things done sometimes doesn't necessarily have the question of safety at one's foremost. Whether that has any foundation at all in reality is something others can guess about and debate.
But the one clear thing that seems to be of significant concern is the question about education. In the course of education, it is saying that it needs to be highlighted. What we do see is that nothing that has been included within the bill would address heightening education of workplace safety needs.
That backdrop leads me to want to try and cover the issues with respect to danger in a very brief way, at least as I see them. One of the real debates is this change from the question of serious and/or imminent threats from what we would see as being potential threats. Ultimately, I think there is a concern that the use of the word "imminent" is now going to preclude the reference to future particular dangers. In practical terms, the real concern is what will happen when we talk about future dangers or dangerous effects, and do we now put them on the back burner.
I'm not convinced that that actually will be the case because while we have seen a critique — and, again, I must say that there has not been a significant number of people coming forward to do that — this concern with the change perhaps plays more on the word "or." Again, wow, a lawyer asking: Does "or" mean "and/or?" I don't believe that it does.
I think that there is the capacity for a broader range of considerations than what we would think of as "imminent," meaning "immediate." Having said that, I think the risk is there. I think it would be very simple to add words like "future" into the language that would potentially address it.
When we talk about the issue of "health of a person," again, it's a very broad expression. So that very broad expression, I think, versus the old expression, which was "injury or illness," has the capacity to encompass the broader definition.
When we deal with issues like exposure to hazardous substances or things of that sort, it does have the capacity to carry on.
I'm going well beyond my time period, so I'm very sorry about that. I'll perhaps quickly jump to the issue of the role of the minister.
I'm not one who is particularly troubled by this change where the minister assumes oversight of functions involved. I'm certainly used to seeing it in other areas of the code, and, frankly, I think that it does bring about the capacity or the ability to draw upon expertise or experience in terms of appointment and has the capacity or the ability to potentially bring about some efficiencies, which, I must say, I do not necessarily see within the traditional system.
Perhaps I'll stop. I guess I have gone beyond my time period. I have circulated material, and I think most of what I might say would be covered there anyway. I will do my best to respond to any questions or dialogue.
The Chair: Thank you.
Colleagues, just to remind you, have clearly focused questions, one question maximum.
Senator Eggleton: This amends legislation that was brought in in 2000, apparently after a lot of consultation with lawyers, employees and groups. For this one, I haven't heard of anybody that was consulted. I don't know whether you were consulted on this, but both the employer groups and the employee groups that came here said that they didn't know where this was coming from or why and that they weren't consulted on the matter.
The concern that they have about the definition is in narrowing it down. Why narrow it down unless you're really trying to narrow down the number of cases that might get to the minister for consideration? In fact, the definition, as it currently exists, has a fair bit of case law associated with it. I wonder if you could comment on the process that's gone on here and whether you have seen or heard of a compelling reason to make this change.
Mr. Koskie: To address the first point, I am not aware of any consultation that took place. Certainly, I was not consulted. I am not aware of consultation with, for example, the provincial government in the context of these particular amendments.
I must say that I was quite surprised by commentary only coming at a late point. In fact, when trying to address this myself, I looked about and only saw various comments coming a week or two before. I became aware of it simply because it was raised at a convention of the Saskatchewan Federation of Labour, which only occurred perhaps a month ago. I'm assuming there must have been some knowledge, but I'm a bit surprised that, if there was consultation and concern, there would not have been commentary before. So, one, I'm not aware of consultation having taken place.
Two, why whittle it down? I have not heard a compelling reason, particularly when there has been a real concern about safety, education about safety and, indeed, addressing it. It is something that I guess nobody has been persuaded will be advanced by it. Perhaps there is a process that is endeavouring to try to focus on the more significant or more immediate issues.
The one comment I was able to pick up from the minister was that approximately 80 per cent of claims were, on appeal, not found to have been dangerous. I don't have those statistics. I only see it and can only glean that that must be part of it that's saying it's a part of an efficiency measure. There's no other knowledge.
[Translation]
Senator Bellemare: Thank you for being here. My question is about this figure of 80 per cent, which was put forward as the reason for the amendments. We have been told that the main reason for the bill, for those amendments to the Labour Code, was to reduce unjustified work stoppages. We were told that 80 per cent of work stoppages were not justified. We were given statistics by sector — employers and employees came to testify — and we have seen that, over a 10-year period, most of those stoppages occurred in the public service.
You, as an expert, have worked with employers and unions, so you have a varied experience. First, do you think those changes are major and significant?
Second, do you think they will help reduce unjustified work stoppages?
Third, do you feel that these changes will impact occupational health and safety, or are they neutral?
[English]
Mr. Koskie: I do not believe that it will have a significant impact on the number of matters that end up being considered. To say we are addressing 80 per cent, I really do not believe that it will. I believe that these matters are sometimes generated, and we tend from time to time to see issues perhaps have a greater frequency when there are certain things occurring, for example, at a time of collective bargaining when people might say, "We are going to use the complaint process to try to actually influence."
Do I believe that it will have a significant impact? No, because I believe there will be a tremendous pressure to try and still broaden how individuals will interpret not only "imminence" but "health of individuals." So I think we're going to see that there's will be quite a time period where there's going to be an effort to broaden that interpretation anyway.
Neutral? I would say neutral at best, perhaps even a bit more work because we are now going to see that it is going to be somewhat more of a complex issue where now we have to get past that threshold.
Senator Seidman: I would just like to pick up on the definition change. You explained it well. It was an issue with our previous witnesses. When FETCO was here last week, I asked them about two particular examples. One would be the chronic exposure to toxic or hazardous substances, such as asbestos or pesticides, and the other was a pregnant woman who might be exposed on a daily basis to radiation from a lab or whatever it might be. They assured me that those two examples would be covered despite the fact that hazardous substances and chronic illness were being taken out, the long-term aspect as opposed to the more imminent aspect that you mentioned.
They said, for example, section 132 of the code would cover the pregnant women, and there were 20 other sections in the code that weren't being changed that would cover the very obvious detrimental aspects of exposures to things like asbestos, pesticides and other toxic substances. What would you have to say about that?
Mr. Koskie: I tend to agree that I believe it would be covered. The changes that have been made make me wonder what the actual intent is and, as somebody who sits as an adjudicator in a variety of other capacities, I would be very surprised to see that it would not be covered.
Senator Seidman: Thank you, I appreciate that.
Senator Enverga: Thank you for your presentation.
Point 2.1.3.3 of your submission states that:
The new definition may not adequately anticipate "exposure to hazardous substance," since such exposure may be at odds with "imminency";
Wasn't that answered in the bill when it says " imminent or serious threat"? That would have been answered, right?
Mr. Koskie: Yes. I think perhaps I'm playing the role of lawyer a little too much. I'm playing the devil's advocate, on the one hand, saying I believe that may well be the argument in one breath, but I believe that it is covered by the question of "serious."
Senator Segal: Do you believe that, as a result of this proposed change, any federal employees who now have the right not to work in an unsafe circumstance, and to say clearly that they don't wish to, faced with a particular context, will have that right, in any meaningful way, diminished by this legislation?
Mr. Koskie: To crisply answer that, no, I do not believe that.
The Chair: We heard from previous witnesses that the changes being made here parallel the language in a number of provincial acts dealing with these matters. Is that your experience?
Mr. Koskie: Unfortunately, I can say it has not paralleled what has occurred in Saskatchewan. Unfortunately, I could not speak intelligently about other jurisdictions, but it has not. In fact, I don't believe that, even in terms of the various contexts that I have there, that that necessarily would be the direction taken.
The Chair: Thank you very much.
Senator Eggleton: The change permits the minister to foreclose further investigation of a work refusal where the minister deems the work refusal to be trivial, frivolous, vexatious or in bad faith. One of the things about this proposal also is there is no statutory right of appeal from the minister's decision. Does that concern you?
Mr. Koskie: When there is no right to seek appeal or review, I guess I'm always concerned, but I must say it's not something that I'd considered. I'm not sure.
In reflecting, I'm not sure that it would preclude an individual repeating their refusal or repeating their action. I guess if it's been denied on one occasion, then one would usually use the reason of "vexatious" for saying it's already been dealt with and hence should not be dealt with again.
It is concerning. I hadn't thought about that, I must say.
The Chair: Mr. Koskie, thank you very much for appearing. As you have heard, we have a very tight schedule. We thank you very much for the clarity of your responses.
I want now to welcome Kin Choi, Assistant Deputy Minister, Compliance, Operations and Program Development for Employment and Social Development Canada; and Brenda Baxter, Acting Director General, Workplace Directorate. I haven't asked you who wishes to speak first.
[Translation]
Kin Choi, Assistant Deputy Minister, Compliance, Operations and Program Development, Employment and Social Development Canada: Mr. Chair, Mr. Deputy Chair, senators, for more than 100 years now, the Labour Program has been protecting the rights and well-being of both workers and employers in federally regulated sectors. This includes the creation and maintenance of safe and healthy workplaces.
The goal of the Labor Program and the purpose of Part II of the Canada Labour Code is to prevent accidents and reduce the number of injuries in the workplace. All of our efforts and decisions are dedicated to those objectives.
Our efforts, combined with the efforts of employees, employers, unions and other governments are paying off, as demonstrated by declining injury rates in Canada in federally regulated industries. The number of disabling injuries in industries under federal jurisdiction is steadily declining — by 22 per cent from 2007 to 2011.
We need to continue to take a more proactive approach and work with high-risk industries to educate, so that workplace parties are able to identify and protect themselves from hazards before they become a danger.
Employees and employers are at the front line when it comes to preventing injuries, identifying health and safety issues, and resolving them in an effective and timely manner.
Employers are also responsible for ensuring a hazard-free workplace for their employees, by providing training, information and supervision.
Employees have the right to be informed of hazards in the workplace; the right and obligation to participate in identifying and correcting workplace health and safety concerns; and the right to refuse dangerous work.
[English]
What I've just described is the internal responsibility system, and it's the cornerstone of Part II of the Canada Labour Code. It recognizes that employers and employees are jointly responsible for the health and safety of workers.
With the proposed amendments, we aim to strengthen this system by providing additional support to workplace parties by ensuring that health and safety committees play an active role in addition to that of the employer in the investigative process. This is in line with the process in other jurisdictions.
Over the last 10 years the vast majority of refusals to work have ended with "no danger" decisions. Over this period, 80 per cent of the refusals to work have been determined to be situations of no danger, even after allowing for appeals.
This is an accurate portrait of the situation related to refusals to work, extracted from data provided by our health and safety officers on their activities under the code. Other jurisdictions also use similar means to report refusals to work.
Refusals to work, whether they are generated by individuals or groups, will now go through a two-step process. First, when an employee believes they are in a situation of danger, they are required to report it to their employer. The employer is required to investigate the case with the employee, and if the decision is one of "no danger," the employee can refer their case to the health and safety committee, which in turn will conduct its own investigations and come to a decision.
The new process will enable health and safety committees, made up of both the employer and employee — for those represented by unions — to play a stronger role in the investigative process.
If the employer and health and safety committees cannot agree, that is when a health and safety officer investigates. Health and safety officers remain available 24/7 to respond to situations that require immediate attention.
As part of the new process, both the employer and the health and safety committee will be required to provide written reports. These reports will provide transparent records, documenting what has been done and what needs to be done to mitigate the risk associated with the hazards. These reports will provide a better basis for decisions and ensure that both investigations are recorded.
Our trained personnel are key to safeguarding and enhancing secure and healthy workplaces. They need clear guidelines and authorities to carry out their functions.
The practice of delegating authority is not new and is widely used within the public service to ensure oversight and accountability. Currently, the Minister of Labour delegates powers under Parts I, II and III of the Canada Labour Code, as well as other acts. As examples, delegations exist for granting permission to allow work hours in excess of the standard work week prescribed in the code or for appointing medical practitioners qualified in occupational medicine.
With the proposed amendments, the Minister of Labour would have the authority to delegate powers, duties and functions previously conferred to health and safety officers. The minister would not investigate the work nor would she hire health and safety officers.
The main goal of the proposed amendment is to protect the lives of workers. Mitigating hazards in the workplace requires that employees are properly trained, that they have the proper personal protective equipment, and that procedures are in place, for example, in the handling of hazardous substances.
That is why we are clarifying the definition of "danger": to remove some of the ambiguities and maybe make workplaces safer. The definition still provides protection from all hazards; imminent, serious or longer-term impacts to life and health; and recognizes that danger includes protection from hazardous substances.
This does not eliminate a pregnant or nursing women's right to refuse dangerous work. Section 132 of the code ensures that any pregnant or nursing employee can cease to perform job functions that may pose risk to her health or that of the fetus or child. This has not changed.
[Translation]
In closing, allow me to emphasize the following points:
The fundamental rights and protections for employees remain enshrined in the code;
The proposed amendments are there to simplify procedures and practices in order to enhance the timeliness and quality of decisions and results;
Recourse mechanisms remain accessible to all parties.
Thank you for your attention. I will gladly answer any questions you may have.
[English]
The Chair: Thank you very much. I will now open it up to my colleagues.
Senator Eggleton: I want to know more about how you got to this 80 per cent, because labour representatives that were here say they don't know where it came from. We got a written submission from PSAC, and they dispute that. They say that's not true, or not true in the total sense in as much as there may not be danger as you're describing it, but in fact that this process does lend itself to taking corrective action at the workplace that may be preventive in nature about anything happening in the future, for example.
Tell me about the 80 per cent. Are they all totally of no risk at all, or has the risk already been solved at an earlier time in the process and you're counting just on the word "danger"?
Brenda Baxter, Acting Director General, Workplace Directorate, Employment and Social Development Canada: I want to emphasize that the majority of the refusals to work are dealt with internally by the workplace parties. So when they work together to resolve the issue successfully internally, the labour program isn't called to come and intervene. So we don't intervene and we don't have any reason to record that information; we don't get it.
We're talking about the situations where labour program officers are called in to investigate refusal-to-work situations. That information is gathered.
The analysis we did with regard to the 80 per cent of those investigations that resulted in "no danger" are situations where our officers went in and investigated. We record that information in our administrative data. We looked back over 10 years at all of the refusal-to-work situations that our labour program officers investigated — approximately 1,000 — and at the outcome of those investigations, including when decisions were appealed. The result was that 80 per cent of those investigations undertaken by our officers resulted in "no danger" situations, even after dealing with appeals.
Mr. Choi: Maybe I could add to that. On the corrective action, when our officers do investigate, can they come up with other hazards? The answer is yes, that's possible. Hazards are present in the workplace. That is their very nature. And employers are to ensure that employees have protective equipment, they have training in place and they have hazard programs in place.
Can our officers, when they go and investigate certain danger situations, spot other issues? Certainly they can. They do that when they do their proactive work as well. They can be investigating something — let's say, it could be a lack of fall-out protective equipment. As part of that process, they may find that no prevention program has been posted. That's not to say that the workplace is not working on it. That's what we're trying to do.
It's important to look at the definition of "danger" and the refusal process in tandem of what we're trying to improve, which is clarification of what "danger" means and to also make sure that the workplaces are working through the internal responsibility system to make sure that they're addressing the workplaces together, because they know the workplaces best.
Senator Eggleton: On the word "danger," you're narrowing the definition of "danger." Why with you doing that? We heard from both the employer and employee groups that said they weren't consulted. In fact, back in 2000, when the changes were last made in this legislation, there was extensive consultation, apparently, but this time, no consultation. They do not know where this came from. Why? Why do you need to do this; why do you need to narrow the definition of "danger"?
Ms. Baxter: If you look at the old definition of "danger," it's very long and ambiguous. When we looked at the refusal process and found that 80 per cent of the situations our officers investigated were not situations of danger, it said to us that maybe there's something there with regard to understanding what danger is. So looking at wording of the old definition of "danger," it is very long and wordy. What we wanted to do was clarify it so it's clear that it covers imminent or serious situations to life or health.
I think we heard the previous witness talking about the fact that this would cover pregnant and nursing women. This covers protections against impacts to health that could be longer-term from things such as asbestos, pesticides, et cetera. The definition we have here we believe still covers that range of situations but is much clearer and more easily understood by the parties in the workplace.
Senator Eggleton: You've raised the question of pregnant women, saying that's covered in terms of risk to reproductive situations. However, by putting in "imminent" and "danger," it seems to me you remove the possibility that there are substances or conditions that exist that could affect a woman who is not pregnant but could affect her in terms of a pregnancy that comes at a later stage. You've narrowed this definition down to, I think, exclude that group.
Ms. Baxter: I think, again, we need to consider that there are hazards in every workplace. As was mentioned, the internal responsibility system is saying the workplace parties really need to look at their workplace. They're best placed to understand what's actually in their workplace and to identify potential hazards and put in place strategies to mitigate those hazards. That could include training. It could include putting in place personal protective equipment, as well as having procedures in place to deal with certain situations. First, the workplace parties should be doing that.
With regard to the definition of "danger," again, if an employee has a reasonable expectation that they are dealing with something dangerous, they have the right to refuse. That right to refuse has not been changed at all. It remains enshrined in the code.
Senator Eggleton: On the 80 per cent, 80 per cent didn't meet this high bar of "danger," but a lot of the things that the health and safety inspectors found in fact were relevant to health and safety, and within that 80 per cent there was still useful work done by them.
Ms. Baxter: One thing to consider as well is if our officers are going in to investigate a situation that the workplace parties could have resolved themselves, that means they're not available to actually go in and do some of the proactive work that we'd hoped they would do in some of those high-risk industries where the rate of danger is higher than normal. What we want to do is to protect the workers in the workplace and make those workplaces healthy and safe. Therefore, enabling our officers to do more proactive work to enable the workplaces to reduce hazards and prevent accidents and injuries is core to the proposed amendments that we are putting forward. Workplace parties should work together to address hazards in their workplace.
Senator Cordy: As Senator Eggleton has said, these amendments in the budget bill are amendments to a bill that was passed in 2000 that had extensive consultation, and we haven't had any witnesses who said they were consulted. Who was consulted before you developed these amendments?
Ms. Baxter: As part of the budget process, there are no consultations with regard to the budget process. What I can say is that the proposed changes are a result of many years of feedback we received from various different stakeholders, employers and employees, and information we've received from our officers when they actually are doing their work, and looking at our administrative data as well as internal audits and the results of court decisions. Various sources of information are providing us the sources to help us move forward to make these positive changes.
Senator Cordy: Because it's part of a budget bill, you can't have consultations; is that correct? That's a good way to get things done without consultation.
Mr. Choi: I think it's probably more appropriate for ministers to respond to that.
Senator Eggleton: Yes, except she didn't come.
Senator Cordy: Is the minister coming? No, the minister is not coming, so I guess you're our best chance. No consultation because it's in a budget bill, and my feeling is it shouldn't even be in a budget bill, but that would not be for you to comment on.
I would like to go back to the 80 per cent. That number sounds extremely high, and when one reads it, one initially thinks, "My goodness, 80 per cent; no wonder you're making the changes." But in questioning labour officials who were here before the committee last week, we found that this is over a period of 10 years and over 1 million workers. Would that not be correct?
Ms. Baxter: It is 1.2 million workers.
Senator Cordy: So 1.2 million workers over 10 years, and the 80 per cent number of refusals was in fact only a little over 800 refusals. To me, looking at it, over 800 work refusals over 10 years for over 1.2 million employees doesn't seem that huge. That would be 80 a year, or 6.7 refusals a month, for 1.2 million employees. The 80 per cent sounds really high, but when you put the numbers with it, you know what? It doesn't seem very high to me. Why are you using the 80 per cent and not the number of employees? You did say 10 years, and I grant you that, but the number of refusals is actually a little over 800 for 10 years.
Mr. Choi: On the one hand, if you look at the 1.2 million, as Ms. Baxter mentioned, the vast majority of the workplaces solve their problems when there is a situation of danger. Indeed, when they're dealing with all hazards, they have good programs in place and that's what's working. To use 1.2 million as the base line I think doesn't paint an accurate picture.
In the number of refusals that we get, it's important that it's not a one-to-one ratio. Often there are individual refusals, but there are also group refusals mixed in with those numbers. It could be tens of people or even hundreds of people mixed into that. There is more than just the simple one-to-one ratio in that.
By our officers going to investigate, it is important that our officers are looking and dealing with the time they have in a proactive way to prevent rather than to do the reactive work. Prevention is always better. It takes a lot of our time for our officers because a lot of the workplaces can be across the entire country. Our officers are called in the middle of the night and will require time to get there. They're a 24-7 organization. When we're called, that means the workplaces are stopped. They're not doing what they should be doing. That has an impact overall in terms of workplace morale and productivity. It is important to look at those numbers in their entirety and not a one-to-one ratio.
Senator Cordy: A clear picture would also be to state, as you stated, that the vast majority of cases are solved. We should look at that also.
Senator Seth: I am a little confused. As you suggested, 80 per cent of these claims of dangerous situations are found to be safe. They are really safe, and nothing comes out of them. Is this because the definition is too vague, or is it because the employees don't understand the meaning of "danger"? Can you explain this? Could it be possible that they're not understanding?
Ms. Baxter: That's very possible. That's one of the possible conclusions we came to what he we did look at our administrative data. When you look at the previous definition of "danger," it is very long and wordy, and there can be some confusion. There is a bit of ambiguity in that, so yes, we did draw that as one of the conclusions.
Senator Seth: This could be the cause, right?
The Chair: I'm going to have to limit to the questions. I now have a list here.
Senator Segal: I'm trying to understand the work process that brought you to the conclusion that these changes had to be made. Was it total quality improvement that you try to do all the time in part of your work as public servants, to improve pieces of legislation that you find vague or unconstructive? Was it submissions made to you by employers or employees about problems in this area? What was it that would have brought you, in terms of your vast responsibilities, which are larger than this piece of legislation, to decide this was necessary now over all the other things that might be pressing in your areas of jurisdiction? The problem seems to be a small one. It doesn't appear to be a huge one. It doesn't appear to be a large number of problems based on the total employee basis referenced by my colleague. I just want to understand what would lead you to decide, as distinguished public servants trying to do a good job for the public, that this was something that had to be done now.
Ms. Baxter: I would say that as public servants our mandate is to improve health and safety in workplaces, so we have been looking at the efforts we've been making to improve the rate of injuries in workplaces, and that has been going down. But when you consider that every single injury or fatality in the workplace is one too many, we are looking at how we can improve that, how we can make workplaces safer.
So we have looked, as I said, at the information available to us, our administrative data, the feedback we've received from our various different stakeholders, from our officers as well as court cases and audits, and asked, "So how can we make improvements?"
We want to enable our officers to do more proactive work, to get into those high-risk workplaces and work with the workplace parties to enable them to identify the hazards in the workplace and to mitigate those hazards before they become a danger and before there's an accident or injury within that workplace. That's the motivation behind the changes.
Senator Segal: This is about alleviating pressures around the old process so they have more time to do other things?
Mr. Choi: I think it's a bit more than that, and I can build on that.
As you can tell from Ms. Baxter's expression, we are very passionate about safety. When you look at today's workplaces in the world that we live in, we are building our compliance continuum. When we look at the reactive work, that's on the right side of that continuum, and it's very expensive and it takes time away, versus the opportunity to do prevention, promotion, education and information. So we're trying to balance our work.
Right now we're spending a lot more time on that side of things, and we look at what the impediments are on that continuum. We do have certain tools, but we want to spend more time to help facilitate compliance rather than have a stick. We will use a stick, including prosecutions, which we use, but on that continuum, we see there are impediments for us to modernize the program and to be able to use business intelligence to target industries and companies that are not doing as well, that have higher rates of injuries.
The question is asked, "What's the policy intent?" The big policy intent is to be able to focus on the high-risk industries, look at our compliance continuum and use our business intelligence.
[Translation]
Senator Bellemare: My question has to do with clause 176, and subclauses 1 and 2, which I think contain the most surprising aspects of this bill. The legislation first repeals the definition of "regional health and safety officer," and then it redefines the notion of "danger." I will not question you on the notion of danger, but I want to talk about subclause 1, which prompted the witness who appeared before you to say that this legal amendment asserts a command and control structure. However, you are saying that, on the contrary, workplace management is what is needed to achieve even greater safety in the workplace.
Could you use a concrete example — since I do understand the principles — to explain how the bill will encourage the workplace to get involved in occupational health and safety?
Ms. Baxter: Thank you for your question.
[English]
If I understand, you are asking two things with regard to the proposal to change the definition of "danger" and also with respect to removing the reference to health and safety officers. I will go, then, to the health and safety officers.
As was mentioned in the opening remarks, health and safety officers continue and will continue to be key to enforcing the code. They will remain. What we are doing is providing broader oversight for the minister with respect to application of the code and providing the ability to have broader clarity and consistency with regard to how the code is applied across the country.
If you can appreciate, our officers go into very difficult situations. They're in an individual workplace, and in that individual workplace, right now they are designated to make all those decisions on their own. What we want to do is provide them support when they are making those decisions — particularly in very difficult situations, you can imagine, where there is a fatality or a serious injury — so they can work with their colleagues, with their technical advisers and with their regional directors to help build the broader context with regard to the decisions they need to take in dealing with that particular investigation.
Bottom line, we still have officers and we will still have officers. We need those officers to enforce the code, but we want to provide them more support as they are out making decisions with regard to investigations, so providing enabling support and providing consistency with regard to how the code is enforced.
Mr. Choi: If I could add on that part around delegation, I had mentioned in my opening remarks that this is a common administrative practice in the public service for most programs. As an ADM, I get my financials and HRs delegated. I get certain powers delegated to me through the code and I exercise them. But before I can exercise those delegations, I have to prove that I have those qualifications, that I have had the training, that I've proven I have the responsibility and that I've taken on those responsibilities. So it's very similar in that vein to moving to that model. It's really to support that process.
Senator Dyck: I'm going to return to the line of questioning that Senator Cordy brought up. If we look at the 80 per cent figure, it works out to using two officers per week. From the information that we have been provided, it seems there are currently 88 health and safety officers, so 2 out of 88 doesn't seem like a huge commitment. However, the number of health and safety officers has declined over the last decade. At one point 10 years ago, there were 147.
My question is: If it's taking away health and safety officers that you wish to do other work, why would we not just add more health and safety officers?
Mr. Choi: Maybe I can address the last point first in terms of the number of officers.
Other people who have appeared have made the claim that we've had more officers, and I think there's a bit of a mix-up in terms of the titles of our officers and who they are. I think people been using the term "labour affairs officers." When you do that, you actually include our labour standards officers and other people who are in the program.
With respect to the figure of about 150 or 160 people that is being quoted, half of those people are those labour standards officers. They have been consistent over the last five years. I've only been in the program for that long, so I believe I have all these numbers right.
When we say we've averaged 80 officers over the last five years, that is genuinely the case. So there is a mix-up in terms of the terminology of "labour affairs officers," which includes health and safety and also labour standards officers.
On your point around looking at the 80 per cent and the amount of work doesn't seem that much if it's only a couple, well, there are 9,000 employers spread across the country. If we try to deal with things on a one-off basis, it would be impossible; it doesn't matter how many officers there are. You can do the math in that sense as well. What we're trying to do is use business intelligence to target the areas that we have to.
Unfortunately, when our officers go in to investigate, it takes a lot of time because currently there is no documentation. It's all verbal. When they go in, they have to start brand new. On average, it takes up to 45 hours of their time to investigate. That's a lot of time they're spending. That's over a week of work to come up with a conclusion because they have to do the due diligence and look at the various sides.
The point is that we want our officers to spend more time up front. They will be available to do the investigations when they need to; they're available 24-7. The employees' right to refuse remains enshrined — nothing has been taken away — and that's why we're making those changes.
Senator Dyck: Why wouldn't you have a different type of officer, then, if you want them to do a different type of job?
Ms. Baxter: That's part of what we would like to do when we move to this delegation model. It will enable us to look at the officers we have in place, their experience and their expertise. We could have officers that have the necessary training and expertise to deal with the serious cases, such as a serious injury or fatality. We have less experienced officers who have received training and certification. They are new and are able to do the proactive work. They can get in to meet with the employers and the workplace parties to do some of that proactive work. That's really our intention.
[Translation]
Senator Chaput: If I have understood correctly, you are saying that the number of health and safety officers has not been reduced. Has there been a reduction in the number of other positions that are indirectly related to employee health and safety?
[English]
Mr. Choi: If you're referring to all those who work in Part II, I will answer in that way. There is fluctuation, as you can appreciate, in any organization through attrition — people leaving for whatever reason, so we've maintained in that way.
In our core program for addressing Part II of the Canada Labour Code, we have not had any cuts through strategic review or through DRAP. We have fought hard to protect that program because it is our core mandate. We are the good guys, these are very important, and we have fought to keep our resources. Indeed, we're in the midst of hiring more officers. We're trying to fill the positions of those who have retired or left through normal attrition.
[Translation]
Senator Chaput: So you have not reduced the number of health and safety officers.
Mr. Choi: No.
[English]
The Chair: Mr. Choi, you referred in passing to the issue that we are now moving to in writing summaries of these reports. It seems to me self-evident that a written summary of decisions and the basis of it at each stage would have been the logical way to proceed in any event; but you made an important comment: By having the information documented and the basis of the decision at each of the steps allowed, you implied that this would help the inspectors to get up to speed more quickly with regard to the issues they're coming to review. I would hope that it would lead to more effective understanding of the situation. Perhaps you could expand a little on that part?
Mr. Choi: Absolutely. Thank you, chair, for that question.
It really helps all the parties in this process because the documentation will help the employers and the health and safety committee across their workplaces. Often these organizations are national in scope; so this is a good practice for them to document their challenges. Many organizations already do this, so this is not a big impediment. In fact, this is a best practice known in the industry for people to document it.
When our officers have those documents available, it can expedite the work. In a dangerous situation, you want to be able to respond as quickly as possible. We are making those changes to allow our officers to receive the documentation so they don't necessarily have to travel. Often it can be far distances for them to get there. It helps to expedite their work and it helps the workplace get back to their normal activities.
The Chair: I understood that some places do it now but it's not a requirement, whereas it will be a requirement from now on. Is that correct?
Mr. Choi: Yes, I think those working in the system will be doing this.
The Chair: Thank you for clarifying a number of situations for us.
With that, we will now move to an in camera session to deal with our instructions on these matters.
(The committee continued in camera.)