Proceedings of the Standing Senate Committee on
National Finance
Issue 12 - Evidence - May 13, 2014
OTTAWA, Tuesday, May 13, 2014
The Standing Senate Committee on National Finance met this day at 9:32 a.m. to study the subject-matter of Bill C- 31, An Act to implement certain provisions of the budget tabled in Parliament on February 11, 2014 and other measures.
Part 5, Clauses 99-101 — Office of the Privacy Commissioner of Canada
The Honourable Larry W. Smith (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Honourable senators, this morning we will continue our study of the subject-matter of Bill C-31, An Act to implement certain provisions of the budget tabled in Parliament on February 11, 2014 and other measures.
[English]
We will begin today by looking at Part 5, Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act, which I believe is called FATCA. This can be found on page 72 of your bill.
From the Office of the Privacy Commissioner of Canada we welcome Chantal Bernier, Interim Privacy Commissioner, and Barbara Bucknell, Acting Director, Policy and Research.
[Translation]
Chantal Bernier, Interim Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada: Thank you, Mr. Chair and members of the committee, for inviting me to discuss the privacy implications of Bill C-31, specifically with respect to FATCA.
Joining me today is Barbara Bucknell, the acting director of the Policy and Research Branch.
In my time today, I will focus on the United States Foreign Account Tax Compliance Act or FATCA. I will however conclude with some brief comments on another part of C-31 which has privacy implications.
[English]
As you are aware, Bill C-31 includes an agreement to implement the exchange of tax information between Canada and the United States. FATCA is a U.S. law that requires financial institutions in countries outside of the United States, including Canada, to report certain information on account of a U.S. person to the U.S. Internal Revenue Service, the IRS.
Under the agreement, Canadian financial institutions will be required to begin due diligence procedures as outlined in the agreement starting July 1, 2014, and to report information to the Canada Revenue Agency beginning in 2015. While some have asserted that this agreement violates section 15 of the Canadian Charter of Rights and Freedoms on the grounds that it discriminates against Canadians based on the place of birth or citizenship, this issue is beyond the scope of my office's mandate.
Equally beyond our scope is how foreign jurisdictions implement their own tax collecting operations internationally. What does fall within my mandate is ensuring that institutions fulfill their privacy obligations.
I would like to note that there is a long established practice of information sharing between nations for the purposes of taxation enforcement. This isn't a new concept.
That said, we will expect that this and all information sharing activities be undertaken in a way which respects privacy. This means we expect that CRA will meet its obligations under the Privacy Act in carrying out its FATCA responsibilities.
Further, we expect private sector organizations, such as financial institutions, that would become legally required to collect consumers' personal information and disclose it to CRA to also comply with their obligations under the Personal Information Protection and Electronic Documents Act, which is the private sector privacy legislation.
These obligations include limiting the amount of personal information collected to only that which is necessary and to safeguard it accordingly.
To that end, education and outreach to institutions affected by this new reporting requirement will be crucial to ensure that information collection is appropriate, limited and done in the most privacy sensitive manner possible.
[Translation]
Beyond this, Bill C-31 introduces some changes to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. Specifically, it broadens the amount of personal information collected, and increases FINTRAC's information-sharing capabilities and requirements. I have detailed my views about this matter in the written submission I provided to the committee.
In my time now, I just wish to note that what we have seen regarding the evolution of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act presents some lessons learned from FATCA-related obligations. When the PCMLTFA was introduced in 2002, it had narrowly — and clearly — defined reporting requirements. As time progressed, its scope of application has broadened and the incentive to overreport has gradually increased; Bill C-31 increases it further still.
We would strongly urge the committee to advise the government to proceed with caution to avoid the potential for further scope creep. In closing, thank you, Mr. Chair and members, for the opportunity to discuss this issue. I welcome your questions.
[English]
Senator Callbeck: Thank you for your explanation. In your comments at the bottom of page 1, you say that some have asserted this agreement violates section 15 of the Canadian Charter of Rights and Freedoms. You go on to say that's not part of your mandate. Whose mandate is it to look at that?
Ms. Bernier: Well, the Canadian Human Rights Commission's mandate is to look at issues in relation to discrimination.
Senator Callbeck: Are they looking at this? Do you know?
Ms. Bernier: I would not know.
Senator Callbeck: Well, aren't you concerned about this?
Ms. Bernier: We have to apply our mandate. Our mandate is to seek compliance with the Privacy Act and the private sector legislation, which we call PIPEDA. We need to stick to our mandate as it is legislative, given to us.
Senator Callbeck: You would never say to the Human Rights Commission that this is something you have a concern about and are they checking on this?
Ms. Bernier: We have had conversations about issues that intersect between the two offices, but we respect their mandate and we feel it is for them to decide what issue warrants their attention.
Senator Callbeck: What about other countries that have a similar type of agreement? Do you know what they are doing regarding privacy laws?
Ms. Bernier: My understanding is that other countries with this kind of agreement are positive that they consider that this is among the many possibilities of ensuring the integrity of the U.S. tax regime. They feel this is a proper way to go.
Senator Callbeck: On page 2 you say that ensuring institutions fulfill their legal privacy obligations is within your mandate. You say you would expect them to do so, and then you go on and say the same thing about financial institutions. What happens if they don't?
Ms. Bernier: You mean what happens if they do not respect PIPEDA or if the CRA violates the Privacy Act? There are two possibilities. In relation to the Privacy Act, as in relation to PIPEDA, citizens who would, for example, realize that their privacy has been violated could come to our office and file a complaint. We investigate, and we make recommendations for the correction if indeed the claim is well-founded.
In relation to the private sector, should there be a violation that is well-founded, we can actually refer the matter to a tribunal that could order damages and could actually force the company to change its practices.
Senator Callbeck: What tribunal would that be?
Ms. Bernier: The Federal Court; we can take it to the Federal Court.
[Translation]
Senator Bellemare: Ms. Bernier, could you please clarify some comments you just made about the need for caution. You said, and I quote:
As time progressed, its scope of application has broadened and the incentive to overreport has gradually increased; Bill C-31 increases it further still. We would strongly urge the committee to advise the government to proceed with caution to avoid the potential for further scope creep.
Could you please elaborate on that?
Ms. Bernier: Of course. Under the act, we are required to audit FINTRAC's activities every two years. We have now audited FINTRAC twice and, each time, we observed the same trend, in that financial institutions or institutions that are subject to the act and required to report to FINTRAC tend to report too much information, in an excessive manner.
We are seeing that this trend stems from an incentive that is inherent to the regime. In other words, if an institution does not report all of the transactions that it should report, such as transactions that would exceed the $10,000 threshold or that would be obviously suspicious, it would be subject to fines.
Furthermore, if the institutions report transactions that would not be suspicious, there is no fine. They would be in contravention of the Privacy Act, but there is no fine. This creates an incentive to overreport to FINTRAC. In addition, this trend is exacerbated by the fact that FINTRAC does not reject, so to speak, the information that it should not be receiving.
We have therefore recommended that FINTRAC have a pre-screening process so that it does not accept information or reports that do not come under the criteria of the act. An improvement has been made with Bill C-31, in that FINTRAC is required to destroy information it receives that it should not have received. That improvement corresponds to one of the recommendations in our audit report.
Senator Bellemare: Thank you very much, Ms. Bernier. It was helpful.
Senator Rivard: Thank you, Mr. Chair. What more could the American government require from Canadians, our snowbirds, who spend about six months down south?
Without getting ridiculous, might Canadian taxpayers be required to attach a copy of their federal income tax return to send to the American government? I am convinced that, if that were the case, we would count on you to denounce it. Given the way things are going in the sense of more and more information being required, do you think it is possible that this will happen?
Ms. Bernier: It is important to say with resignation that we have no jurisdiction when it comes to American policies. The United States is a sovereign nation and can therefore require people who stay in the United States to provide certain information.
I am counting on our Canadian negotiators to oppose any information request that would be abusive in the sense that it does not correspond to a demonstrated need. However, if despite all the efforts of Canadian negotiators, the American negotiators persisted in requiring certain information to enter or stay in the United States — the United States is a sovereign nation and as with any other requirement of any other sovereign nation with respect to visas and the personal information required to enter or stay there — Canada would unfortunately have to abide by it.
Senator Rivard: With respect to the requirements, do you know whether the United States is behaving in the same way with Canada as they are with Mexico and some other South American countries? Do they behave differently with Europeans who go and spend several months a year in the United States and own a secondary residence?
Ms. Bernier: As far as I know, the United States, like Canada, has different requirements based on the country.
[English]
The Deputy Chair: Ms. Bernier, you mentioned in the statement you gave us on FATCA that the information from the financial institutions in Canada will go to the CRA before it goes to the IRS. Is there an opportunity to influence the Canada Revenue Agency so that they can create that space required — which is the balancing act that you talked about? Because when we go back to your first thesis on FINTRAC, you set up the test of four in the beginning — which I note for all our members is a really good test — which talks about necessity, proportion, effectiveness and being minimally intrusive in terms of information sharing.
As you have this common theme of making sure that privacy is protected, is that CRA position helpful to protect the information with the IRS?
Ms. Bernier: Our comments in that regard are very much based on our experience in relation to FINTRAC. We would recommend to the CRA what we have recommended to FINTRAC. Since the CRA is bound by the intergovernmental agreement that has been signed, we believe there is room to ensure proper enforcement with outreach and education of the financial institutions that must report.
We have urged FINTRAC to do that in its regime; we would urge CRA to do that as well to make sure institutions do implement the criteria very strictly and that they be informed as to what that means, so that there is no over- reporting.
[Translation]
Senator Chaput: Ms. Bernier, if we had asked you for your advice before studying the bill, would certain measures have been different?
Ms. Bernier: We had discussions with the Department of Finance and have seen improvements to the evolution of the bill.
However, we must resign ourselves to the fact that we are faced with a requirement from the United States and that the requirement corresponds to the public interest of the United States, meaning the integrity of their tax regime.
I think that the regime we have developed is proportional to that requirement, but I would like the assurance, on the one hand, as I was telling the chair a minute ago, that all of the measures required to avoid the excessive collection of information will be implemented, as well as all of the measures required to protect the security of the information once it has been collected.
[English]
Senator Gerstein: Thank you for being here today. Do you accept the premise that there is some form of balance between national security and privacy?
Ms. Bernier: Absolutely. In fact, I would say I accept the premise that privacy is a right that exists in relation to other rights.
Senator Gerstein: Would you accept the principle or premise that the balance may change as a result of external events?
Ms. Bernier: Definitely. If you look at the four-part test — the legitimacy test that the chairman was just referring to — on necessity, proportionality and the lack of a less intrusive alternative, it is precisely meant to integrate in the privacy analysis external events.
Senator Gerstein: Could you tell the committee how your personal views have changed in terms of this balance since 9/11?
Ms. Bernier: My views have never changed in principle, but evolved in the application of the legitimacy test. The legitimacy test is immutable. It is a fundamental right that intrusion upon privacy can only be legitimate if it corresponds to the four-part test that I have just stated.
That four-part test, being based on events, on circumstances, leads to different application. Therefore, the reality of a threat, for example, will justify a certain level of privacy intrusion proportionate to that threat.
So the legitimacy test is immutable in its framework, but flexible in its application precisely to ensure this organic coexistence of safety and privacy.
Senator Gerstein: I'm not sure I understand exactly what you said, but having said that —
Ms. Bernier: I can explain it.
Senator Gerstein: Let me pursue that for a moment. If you go back to 9/11 and the events that took place at that point, you are urging this committee to advise the government to proceed with caution with further scope creep. I submit to you: Have you not had scope creep yourself with regard to events since 9/11?
Ms. Bernier: No, I don't feel we have had scope creep. Perhaps I am not entirely objective in answering your question because I believe that privacy must evolve with the rest of society. So our analysis must make sure that at every turn, as our society evolves, that we apply the analysis that is relevant.
An answer to your question would be found in a document that we have published called A Matter of Trust: Integrating Privacy and Public Safety in the 21st Century. This document really addresses the point that you are making. We are in a rapidly changing world in many aspects; technological but also political. If you look at the special report we presented to you on January 28 on privacy and national security in relation to cybersurveillance, we start with a statement of the facts. We start with a description of the current national security challenges. Then we move to the privacy implications and to recommendations on how you integrate the two.
The protection of privacy is the proper integration of remaining private and yet safe at the same time. It will look different depending on the realities of the threats, definitely.
Senator Gerstein: I accept that. I come back to why you conclude your statement this morning with saying to this committee that you are strongly urging we advise the government to proceed with caution to avoid further scope creep. What's your worry?
Ms. Bernier: What I'm trying to tell you is that there is a tremendous increase in surveillance capacity as well as appetite. This increase must remain faithful to the fundamental right of privacy, which means that as we adopt new measures that may be more intrusive to privacy, we must make sure they meet that legitimacy test. We must make sure that we have a demonstrated need, it is proportionate to that demonstrative need, it is likely to be effective and that there's no less intrusive alternative.
We must never lose sight of that legitimacy test to make sure that we have a society that, through all its evolutions in relation to threats, remains both safe and private.
Senator Eaton: I'm sure you can explain something to me, Ms. Bernier, in following up on my colleague's question. With FINTRAC, information is turned over to the IRS, but it seems that it goes through the CRA. I don't quite understand how the CRA protects our privacy. Wouldn't it be more efficient for banks and financial institutions to pass that to the IRS without going through CRA? What is the role of CRA in that?
Ms. Bernier: The CRA is a Canadian institution.
Senator Eaton: Yes.
Ms. Bernier: Obviously I see the role of the CRA as an assertion of Canada's sovereignty over the personal information of its nationals.
Senator Eaton: Will it edit or look at the information? What will its role be, apart from being Canadian? Is its role any more than symbolic or flag flying? Do they have a role?
Ms. Bernier: First of all, I think CRA should be asked exactly how they intend to play that role. What I understand from the analysis of FATCA is that the CRA will indeed give the information to the IRS. But we believe introducing the presence of CRA in that process, in fact, consolidates protection of the personal information of Canadians.
The Deputy Chair: If we go to the creation of the Administrative Tribunals Support Service of Canada, I'm interested in your comment on the first paragraph of the creation of the central support service in terms of privacy because we will be talking to folks about various issues in the budget. I am sure one of the issues that will come up in the tribunals section will be the issue of privacy.
I am interested in the explanation that you gave in terms of privacy in your report. Could you enlighten us with your comments?
Ms. Bernier: We have published guidelines on the posting of decisions by administrative tribunals. I should say first that federal administrative tribunals come under our jurisdiction as they are subject to the Privacy Act. What we have observed is the posting of their decisions on the Internet has a disproportionate impact on privacy.
Specifically, people who go to an administrative tribunal for something like an invalidity disability claim or a grievance at work will find the decision accessible throughout the Internet, quite easily, which possibly makes them targeted. It can make them suffer a disadvantage in terms of finding a new position when, in fact, the public interest in naming the parties is not there. The transparency of the tribunal justifies — in fact, requires — the posting of the decision. But why name the parties, unless naming the parties is in the public interest? For example, there could be an interest in showing that this person is a fraudster and obtained a position in the public service with dishonesty, so maybe there is public interest in posting that person's name. Otherwise, we recommend that it be anonymized.
Now, the structural changes proposed in Bill C-31 make us wonder whether this will have an impact on the issue of posting decisions on the Internet. We would like to make sure there is clear guidance and that our guidelines be reinforced by making it an obligation for the tribunals to exercise discretion when they publish their decisions on the Internet.
The Deputy Chair: As a closing statement, Ms. Bernier, as you summarize what we've been through today with the questions from our senators, is there a last point you would like to make in terms of your discussion?
Ms. Bernier: I'm very grateful for this opportunity, and I hope I have been helpful in giving you the criteria to apply to ensure proper integration of privacy and other policy objectives in the public interest of Canada.
The Deputy Chair: Thank you. On behalf of all of our senators here, we appreciate your time. Thank you also, Ms. Bucknell, for your testimony today.
I'd now like to welcome our next panel. From the Public Service Alliance of Canada, we have Robyn Benson, National President; and Linda Cassidy, Exclusion and Designation Officer.
Thank you very much for participating today. Ms. Benson, are you going to open with some comments?
Robyn Benson, National President, Public Service Alliance of Canada: Yes, I have some opening comments, and then we'll take questions, if you have any.
The Deputy Chair: We have about 30 to 35 minutes.
Ms. Benson: Perfect. Thank you for the committee for inviting us to appear here today.
The proposed changes to the Public Service Labour Relations Act in Division 21 are linked to Bill C-4, the second Budget Implementation Act adopted in 2013. Clause 308 of Bill C-31 improves the Public Service Labour Relations Act by giving adjudicators the power to order systemic remedies in cases of human rights grievances.
However, this is a small fix to a larger problem that was created by Bill C-4. Bill C-4 removed any role for the Canadian Human Rights Commission in dealing with human rights-related violations in the federal public service. All human rights issues in the federal workplace will now be dealt with by the Public Service Labour Relations and Employment Board, without any guidance from the commission, with its human rights expertise.
In other words, not only will the commission itself no longer deal with human rights issues in the federal public service, but it is also prevented from intervening at the Public Service Labour Relations Board. This is of particular concern because there is no requirement for board adjudicators to have any human rights knowledge or experience.
As for clause 309, the PSAC strongly objects to these latest proposals related to essential services designations. The government has framed them as housekeeping measures necessary to clarify changes made in Bill C-4. They are not. These changes continue this government's unprecedented attack on labour relations and collective bargaining in the federal public service. Without consultation or notification, this government has fundamentally changed the rules in the middle of the game. The proposed changes in clause 309 effectively wipe out all the years of work that federal departments and agencies, the Treasury Board, and the unions had already completed to ensure that the safety and security of the public would never be compromised if union members were to lawfully strike.
Essential services agreements, negotiated and signed in good faith, guaranteed that tens of thousands of essential workers would continue to serve Canadians during a strike. These workers would ensure the safety and security of the public at our borders and in our correctional institutions; they would continue to monitor our food and drugs; and they would continue to provide financial security to those members of the public most in need. It was apparently not enough for the government to have the exclusive right to designate essential services; now it insists on eliminating virtually any union representation in those decisions.
Ten years ago, labour relations in the federal public service were changed by the Public Service Modernization Act. The act recognized that negotiating and renegotiating essential services agreements wasted the government's time and resources, and it changed the rule to allow essential services agreements to remain in place.
The ESAs could be amended as necessary, but the parties didn't have to start from square one over and over again with each round of bargaining.
Bill C-4 vastly expanded the government's ability to designate not just certain functions as essential but whole groups of employees. Bill C-4 also stated that any essential services agreements in place at the time the bill was passed would remain in place. Bill C-31 will revoke all of those agreements. In all cases, the government will have 60 days in which to ``consult'' with the unions. Then the government has another 30 days to make its final decision on the essential services.
Bill C-4 and Bill C-31 effectively give the government the sole right to determine essential services without having to justify if they are truly essential. Their real purpose is to virtually eliminate the right of federal public service workers to strike. This government continues to ignore the fundamental principles of freedom of association. And, once again, these changes to labour-related legislation were introduced without any consultation and were included in an omnibus budget bill.
Our union takes balancing the interests of the public, our members and the employer very seriously. We believe that there should be no danger to the safety and security of Canadians during a strike by our members.
However, by making all past and current negotiated essential services agreements ineffective, the government continues to promote the idea that federal public service workers and their unions can't be trusted to ensure the safety and security of the public during a lawful strike.
I thank you very much for this opportunity and will be pleased to answer any questions you may have.
The Deputy Chair: Thank you very much, Ms. Benson.
[Translation]
Senator Rivard: I see that clause 308 would amend subsection 226(1) in that it would widen the range of redress measures based on what is provided in the Canadian legislation.
To my mind, redress measures generally take the form of financial compensation, accelerated promotion up the ranks, or apologies from management. Could you provide an example of widening the range of redress measures?
[English]
Ms. Benson: If I understand you correctly, you were saying something about systemic remedies. In terms of the changes under 308 and what they've done, I'll give you a concrete example and maybe this will be helpful. Under Bill C-4 — the omnibus bill — the government introduced changes to how we do essential services. Prior to that, the employer would say this is the number of people they want to be deemed essential, this is the work they do and we would agree or not. If we didn't agree, then there was a third party. The government has taken away the right for the third party.
In this current omnibus bill, they're saying those essential services agreements, which were already agreed to, are null and void. For example, we're in negotiations with the Canada Revenue Agency. We're three quarters of the way, if you had to measure it. We're heading into the public interest commission. We had an essential services agreement, but with this particular change it is now voided. Even though we had negotiated it and both parties agreed to it, it's now void. What happens is the government — CRA via the Treasury Board — will come to us and say, ``We want X amount of people to be deemed essential.'' We will have 30 days for consultations — and I say that in quotations because they don't really consult with us — and they have another 30 days to give their decision.
So from my perspective and being a CRA employee, I believe the government will increase the number of essential services without rhyme or reason. That's what this particular bill does.
[Translation]
Senator Rivard: The answer was very clear. Thank you.
[English]
Senator Callbeck: Thank you both for coming this morning. Last year when we heard about the omnibus bill, Bill C- 4, you people were not consulted at all by government if I remember correctly; is that right?
Ms. Benson: Yes, you're absolutely correct. They made sweeping changes with no consultation. When I asked for consultation and spoke with the President of the Treasury Board personally, face-to-face, explaining my dismay at no consultation, I was told that they did not have to consult with us. I explained that after years of a fairly good working relationship between the union and the Treasury Board that it would be important to continue consultation, and that's not what this government wants to do.
Senator Callbeck: The only explanation they gave was that they didn't have to consult with you?
Ms. Benson: Actually, later on that day he put on Twitter that I wanted co-governance. That's another explanation; the union boss wanted co-governance. That is out in the social media world.
Senator Callbeck: What about Bill C-31? Was there any consultation? The government is saying here they're fixing the stakes and clarifying what went on under Bill C-4, but you say it's much more than that. Was there any consultation on this?
Ms. Benson: No. I don't mean to be abrupt, but the answer is no. There was no consultation. Of course, when it came out we realized that it was going much deeper. You can say that they were correcting mistakes. I guess one might say they were trying to close a loophole. Whatever explanation you give, in the middle of negotiations with the Canada Revenue Agency they have now determined that the signed essential services agreements are null and void, so we will have to start again. We are heading towards a public interest commission.
Senator Callbeck: On the essential public service, we heard from Professor Ian Lee last week. I want to get your comments on what he said. He said every public service job should be deemed an essential service. If the job is not an essential service, the government should eliminate it.
Ms. Benson: Okay. Well, now, that's a very interesting statement because we have very important work that is done by our members who serve Canadians, which is not necessarily deemed to be for the safety and security of the country.
If I take my workplace as an example, the individual who files away your income tax return is just as important as the individual who processes your income tax return. I say that with all due respect because that individual, if you should have to make changes on your return, needs to know where to find it. The person who opens the mail is just as important.
I take exception to his comment because certainly there are hardworking union members, employees of the federal public service who provide service to Canadians whose job may not be essential during a strike but who is certainly essential for day-to-day operations. When we negotiate an essential services agreement with the employer, with Treasury Board, we make sure that, for example, those who are getting Employment Insurance cheques continue to get their cheques. Those who are getting the Child Tax Benefit continue to get it.
But is it really essential to collect duty at the border, for example? We have customs officers. It's essential for them to ensure that there are no arms or drugs coming in, no smuggling, but not all of their work, in my mind, is deemed to be essential.
Linda Cassidy, Exclusion and Designation Officer, Public Service Alliance of Canada: I'll carry on with Robyn's trend of the CRA because it's near and dear to us at the moment. I would put to you that a tax collector would be considered essential to the government for ensuring that the finances are brought in and we continue to operate. I would differ with Professor Lee's comments that they're not essential to the safety and security in the midst of a strike, but I would say that to get rid of a collector because they're not essential during a strike means they are not essential to the government. I don't think we should mix the two of them up.
The right to bargain and the freedoms that go along with that have to be balanced with the safety of the public, there is no question about that. There is a multitude of jobs done by federal employees who are of extreme value. We have those taking care of the waterways and the farms that may not actually be for the safety and security of the immediate public, but we've also made arrangements and worked with the departments to ensure that that service is continued.
I will echo Ms. Benson. The auditors of the country need to be kept, but I don't think a taxpayer would expect to be audited in the midst of a strike, and that's where we have to balance it. This government did go on record indicating that the definition of ``essential services'' has not changed. Thus, we wouldn't expect that additional or different positions would now be deemed to be essential, but I wouldn't take it as far as Professor Lee has.
Senator Callbeck: What is the definition of ``essential service''?
Ms. Cassidy: It is basically any service, person or asset of the government that needs to be maintained in order to ensure immediate health and safety and it's very global that way. The courts have determined that that does not include the financial security of a government but it does include the financial security of the public. ``Public'' is actually broadened to mean not just outside of the populous. That could actually mean your co-workers. In the case of corrections, it could mean inmates are considered to be the general public because that is the public that needs to be maintained.
Senator Callbeck: Thank you.
Senator Eaton: I was going to ask you about criteria and definition, but I'll move on to the labour relations board.
Would you not say, Ms. Benson and Ms. Cassidy, that labour relations boards are fairly sophisticated boards; they know what they're doing?
Ms. Cassidy: Yes, there's no question. I would concur that the labour relations board knows what they're doing. We have availed ourselves of their services over and over again.
Senator Eaton: I guess I'm wondering why you're sad that the human rights board has been replaced by the labour relations board. I would have thought — and I'm sure you'll correct me — that they would be very cognizant of what is expected in any given job and what the workplace conditions and rules are. Wouldn't they even be better informed to look after and ensure there is not discrimination based on human rights than a human rights board that is not familiar with that workplace?
Ms. Benson: In terms of a human rights complaint, they're always unique. It's not the same as a labour relations complaint. Labour relations complaints differ. If you don't have the expertise with respect to human rights with respect to duty to accommodate, for example, the human rights complaint that was just won by Fiona Johnstone, which is that she needs to work a regular shift; it can be the same shift but the same shift for child care. A labour relations board wouldn't necessarily have that same expertise as the Human Rights Commission does. We felt the Human Rights Commission was the appropriate place for human rights complaints to go.
Senator Eaton: I would have thought they would have been more familiar with how to make sure that she gets the same shift every day because they're familiar with her workplace and how it works and better able to perhaps help her negotiate than a human rights board that is completely outside her workplace.
Ms. Benson: No, that's not necessarily the case, because a labour relations board does not necessarily know each workplace. We've gone in front of the labour relations board and we provide a global argument to them, but they don't necessarily know the actual workplace, whereas the Human Rights Commission doesn't know about the workplace but knows about human rights and the work that needs to be done and the cases that have been won and have been lost. It just seems short-sighted to cut the Human Rights Commission out and the expertise they currently have.
Senator Eaton: Do you have anything you want to add, Ms. Cassidy?
Ms. Cassidy: Forgive me; I am the exclusions and designations officer, so my area of expertise is definitely with dealing with the Public Service Labour Relations Board in a completely different venue.
I will echo Sister Benson's comments, though, that the expertise developed at the Human Rights Commission is an area of expertise that would be difficult for the board to add to their already convoluted workload. Honestly, the labour relations board, in dealing with the collective agreement grievances, essential services and exclusion rights of the members, has amassed a huge amount of expertise in those fields. They haven't, however, amassed the expertise of the Human Rights Commission in dealing with human rights issues.
One of the main points I would put forward to you is that dealing with an individual in a human rights complaint is vastly different from dealing with an individual who has been denied vacation leave.
Senator Eaton: I would have thought somebody wanting the same shift every night to accommodate child care, which is perfectly reasonable, is something they would deal with on the shop floor and not necessarily by a human rights complaint.
Ms. Benson: We just had to win it at the Supreme Court because the employer denied it all the way through so it's very difficult. Common sense did not come into play with that particular employer, so we had to take it to the highest court to actually win it. At one court where we won — I'm sorry, I don't know my courts really well, and I suppose I should — the employer appealed it. It's really ironic.
We're not averse to the work being done by the labour relations board; of course not. Some cases can go there, but we believe that you shouldn't circumvent the Human Rights Commission. They have an expertise. Very often we will tell our members to file grievances and complaints with the Human Rights Commission. One needs to know that the Human Rights Commission will not step in unless all the avenues have been exhausted, and then they come forward with their expertise.
I appreciate hearing you say that it should have been common sense about the shifts.
[Translation]
Senator Bellemare: I want to come back to the fact that essential services are negotiated. I think that what the government did with Bill C-4 was that it removed the list of essential positions or services from collective bargaining. Is that correct?
[English]
Ms. Benson: What has always happened in the past is that the employer would submit a list. Someone such as Linda would review it with others and then enter into negotiations with that particular department as to whether or not those individuals would be deemed essential. If we couldn't come to a decision, then we had the third party, which was the labour relations board. We would take it in front of the labour relations board and they would make a decision.
Bill C-4 now gives the right for the employer to send us a list of who they deem to be essential, whether or not they've actually done away with those jobs. Under workforce adjustment and the 20,000 jobs that have been lost, some of the positions are ones that they had deemed to be essential or that they put forward to be essential. We were quite surprised about that. If it's an essential position, how is it now that it can be cut, which they have?
They will now put forward their list and we'll have the 60 days where we can ``consult.'' I use the quotation mark visual because it has not been my experience, at least in the two years that I have been president of the PSAC, to have meaningful consultation. So they will have that consultation. We have no third party to go to and within 30 days they will make a decision.
I can tell you that when Bill C-4 went through with the essential services, within a very short period of time, just a couple of days, the Canada Border Services Agency sent to my office thousands of positions that they wanted deemed essential.
[Translation]
Senator Bellemare: How is the essential services designation done in the provincial government? Is it similar to what was done before Bill C-4, or is it instead a government designation?
[English]
Ms. Cassidy: It's interesting. Provincially, and also under the Canada Industrial Relations Board, a majority of cases are done very similarly compared to how we used to do it. I'll deal first with the Canada Industrial Relations Board. The employer and the union enter into consultation and negotiation on positions that we believe need to be maintained during a strike.
One of the largest examples of that is airports. The employer will propose to us positions they believe are essential and that should be. We will look at it; have discussions back and forth; and, in a majority of cases, we will reach complete agreement, sign off, send it to the board, and they approve it.
If there's a position in dispute, we would take it to the Canada Industrial Relations Board, have a hearing where both sides make their arguments, and the board would render a decision. The major difference between the CIRB and the PSLRB is a timeliness issue. Under the Canada Industrial Relations Board, we are talking a 15-day turnaround time. There are no scheduling issues. You have to be prepared; the minute you reach the point where you are discussing a maintenance of activities agreement or essential services, you immediately have to be prepared to make your case, get the decision and follow through with it.
Many of the provinces follow the exact same mechanism. The difference is that the provinces are far more restrictive in what they will actually allow to be an essential service. I will use Quebec as an example. In Quebec, there really is no such thing as essential services. In the companies that fall under the Quebec legislation, all employees are basically considered nonessential.
Senator Bellemare: Nonessential?
Ms. Cassidy: Nonessential, yes. It goes along with their labour legislation in that they believe strongly that the individual has the right to strike and the right to free collective bargaining. In some areas, especially like universities, there are no essential services whatsoever, because they don't believe in it.
In many of the other provinces, it is restricted or limited to nursing staff, fire staff — those that are traditionally deemed to be truly related to the health and safety of an individual.
[Translation]
The Deputy Chair: We need to move on, senator, because we have two other groups of witnesses. The last question for this group will be asked by Senator Mockler.
Senator Mockler: Senator Bellemare asked my question.
The Deputy Chair: We have one more minute. Do you have another question, senator?
Senator Bellemare: No, thank you.
[English]
The Deputy Chair: Thank you for coming in today and voicing your perspective of the legislation. We thank you again for your time.
We now welcome our third group, which will look at discussing Part 6, Division 29: Administrative Tribunals Support Service of Canada Act. We welcome from the Canadian Bar Association Noah Arshinoff, Staff Lawyer, Law Reform; and Cyndee Todgham Cherniak, Chair, Commodity Tax, Customs & Trade Section.
Noah Arshinoff, Staff Lawyer, Law Reform, Canadian Bar Association: Thank you, Mr. Chair and honourable senators. We are pleased to appear before you today on behalf of the Canadian Bar Association in response to Part 6, Division 29 of Bill C-31, establishing the Administrative Tribunals Support Services of Canada.
The CBA is a national association representing over 37,500 members of the legal profession. Our primary objectives include improvement in the law and in the administration of justice, and it is with those lenses we have examined this portion of the bill.
The submission before you has been jointly prepared by the CBA's National Administrative Law Section; the Commodity Tax, Customs and Trade Law section; the International Law Section; and the Labour and Employment Law Section. These CBA sections include lawyers with years of experience, appearing before and working with the various tribunals mentioned in Part 6, Division 29.
The proposed merger under this part of the bill comprises an historic restructuring of some of Canada's administrative tribunals. Although the CBA supports innovative ways to improve access to justice and the administration of justice, this legislation has been introduced without any prior consultation with stakeholders or with those who frequently appear and advocate before these tribunals.
Due to the various concerns this merger raises with respect to independence, potential conflicts and expertise, we recommend that Part 6, Division 29 be withdrawn from Bill C-31.
My colleague Ms. Todgham Cherniak is the Chair of the CBA's Commodity Tax, Customs and Trade Law Section. I will turn it over to her to discuss the substance of the bill and our submissions.
Cyndee Todgham Cherniak, Chair, Commodity Tax, Customs and Trade Section, Canadian Bar Association: The position of the Canadian Bar Association is that the Administrative Tribunals Support Service Act should be withdrawn from Bill C-31 for further consultation with the 11 tribunals, users and stakeholders, including the lawyers who appear before these 11 tribunals. Should you decide not to withdraw it, we then suggest that, at a minimum, you remove the Canadian International Trade Tribunal — paragraph (f) — the Public Servants Disclosure Protection Tribunal — paragraph (i) — and the Canadian Industrial Relations Board — paragraph (c) — from the list of tribunals in clause 377 of Bill C-31.
I am an international trade lawyer, and my experience is with the Canadian International Trade Tribunal. The Administrative Tribunals Support Service of Canada Act intends to consolidate the administrative services of 11 tribunals. It may also have negative consequences that have not been adequately considered. Let's consider some of those important, potentially negative consequences.
The proposed structure of the Administrative Tribunals Support Service of Canada is an entity that reports to the Minister of Justice. The Minister of Justice is also the minister responsible for the Department of Justice. This arrangement may lead to bias, an apprehension of bias and conflicts of interest. How will Canada's international trading partners view the Canadian International Trade Tribunal's administrative support staff when they are reportable to the same minister as the lawyers who bring cases in customs areas, in anti-dumping enforcement action, and against exporters — the very same lawyers who defend government procurement bid challenges filed by foreign bidders on government contracts?
Is this proposed arrangement contrary to Canada's obligations under various WTO agreements and free trade agreements? In the CBA's May 7 letter, we pointed out some of the provisions in the international trade treaties that should be considered carefully before the Canadian International Trade Tribunal is merged into the Administrative Tribunals Support Service of Canada.
I can assure you it will not be long before a lawyer representing an unsuccessful party before the CITT will raise the apprehension of bias, conflict of interest and failure to abide by treaty obligations as reasons for challenging a CITT decision in a Canadian court, before the WTO dispute settlement body or under an FTA dispute settlement mechanism.
If the issue is raised pursuant to the WTO dispute settlement understanding or a free trade agreement, Canada cannot control the outcome of the decision. Canadian judges will not be rendering the decision under an international agreement. Canada may find itself having to compensate a foreign party or face retaliation under an international treaty. If the remedy is a monetary amount, like under Chapter 11 of the NAFTA, the costs may exceed any potential cost savings of the merger, or if retaliation is in the form of increased duties on Canadian goods by a foreign government, Canadian manufacturers may be affected negatively in the international marketplace. The Department of Justice lawyers will have to defend challenges, and this will, by itself, result in a cost to the government.
The risks of litigation increase if the timeliness of the tribunals is affected by the administrative tribunals support services of Canada structure, growing pains and organization. I can tell you that based on my personal experience that the legislative time frames of cases before the Canadian International Trade Tribunal do not allow for any delay. The preliminary injury decision in an antidumping or countervailing duty case is 60 days from the date of initiation — 60 days. The final injury decision must be released within 120 days of the preliminary determination of dumping. Cases before the CITT are not like litigation before the courts that can drag on for years. A customs appeal that was filed a month ago will be heard by the CITT this September.
The expertise of tribunals may be compromised by the merger of administrative support services. I can tell you from my own experience that the staff of the Canadian International Trade Tribunal have specialized expertise in trade matters that is unlike the expertise of the staff of the other 10 tribunals. Staff at the other tribunals cannot quickly step into the role of a CITT researcher, who prepares antidumping injury questionnaires and compiles the data into a pre- hearing staff report. Staff at the other tribunals do not have the same economic analysis skills that the staff that the Canadian International Trade Tribunal have developed over many years. They would not have the same depth of knowledge of Canada's international obligations and trade-related case law in Canada and internationally. The staff at the CITT has knowledge about the rules of origin under free trade agreements and the harmonized system classification of goods for import purposes and for Statistics Canada purposes. The merger of the staff at the 11 tribunals into the administrative tribunals support services of Canada entity is a massive merger.
These important concerns should not be left to chance. We cannot be assured that all risks will be managed by the bureaucrats tasked with the implementation, and this is not a slight on those with the best intentions, or running of the administrative tribunals support services of Canada. If it encounters problems, it is Canada's international representation at stake. It is the administration of justice that's at stake. It is the current efficiencies of the 11 tribunals, such as the Canadian International Trade Tribunal, that is at stake, because the damage may not be undone quickly.
We request that the Senate make a recommendation to remove the proposed administrative tribunals support services of Canada act from Bill C-31. At a minimum, we ask that the Canadian International Trade Tribunal, the Public Servants Disclosure Tribunal and the Canadian Relations Board be removed from section 37 of Bill C-31.
Thank you for your consideration of this request.
Senator Eaton: Thank you very much. I'm not as cognizant of the issues as you are, obviously. We understood that the separate tribunals will still report to their separate ministries; is that not correct?
Ms. Cherniak: It is not my understanding. The Canadian International Trade Tribunal met with the CITT bench and bar committee and invited Madam Peugeot to speak with us, and it was suggested that the staff would be merged and would all be merged under this administrative tribunals support services of Canada, which would be under the Minister of Justice.
Senator Eaton: I thought the staff was under the Minister of Justice, but the tribunals themselves will keep on reporting to their own ministers.
Ms. Todgham Cherniak: The tribunals themselves, I understand that's correct as well. The Canadian International Trade Tribunal would still report to Finance, and each of them separately, from what I understand.
Senator Eaton: Yes. You are still very pessimistic about that.
Ms. Todgham Cherniak: I'm concerned about how this will affect the Canadian International Trade Tribunal specifically, due to the fact that we have international obligations. When you look at our international obligations, there may be a problem due to the fact that the staff that gets the documents, coordinates the information and communicates with the parties to the proceeding will be in the merged entity.
[Translation]
Senator Chaput: Thank you, Mr. Chair. Like my colleague, I understood that the 11 tribunals, even if they were merged under one entity to share administrative services, would remain independent. Is that your understanding as well?
[English]
Ms. Todgham Cherniak: It is my understanding that the tribunal members themselves will remain tribunal members, so that tribunal members of the Canadian International Trade Tribunal will remain members of the Canadian International Trade Tribunal. The appointed members remain the Canadian International Trade Tribunal. But the staff who support them will be in the separate entity, the merged entity.
[Translation]
Senator Chaput: The government believes that there will be an improvement in access to justice. Do you believe there will be an improvement in access to justice with this new entity made up of the 11 tribunals?
[English]
Ms. Todgham Cherniak: I believe that there is a risk that there will be a diminishing of the administration of justice, and that's one of the reasons why we're here. There is the potential for risk.
For example, with the Canadian International Trade Tribunal, you have got foreign parties who participate in the proceedings in an antidumping case. They may have an apprehension of bias due to the fact that the persons with whom they file documents are now under the Minister of Justice. They're under the Canadian government. They don't appear to be staff of the tribunal.
[Translation]
Senator Chaput: Are you also concerned about the application of the Access to Information Act and the Privacy Act? Could that change anything?
[English]
Ms. Todgham Cherniak: When we talk about the Canadian International Trade Tribunal, which is where my experience is, we talk about confidentiality. As a lawyer who appears before the tribunal, I file a confidentiality undertaking. This allows for confidential information that's provided by the parties to the proceedings. The domestic producers of a steel product, for example, must provide their costing information. They have to provide their sales information to their customers and any imports that they have and the prices they pay. There is a lot of very confidential business information that they don't really want released to their competitors, and they certainly don't want it released to let's just say a Chinese foreign producer or the Chinese government. When I'm dealing with confidentiality, the discussion that we have had is that we have got a problem of information being provided. There will be less of an incentive or a desire on the part of the parties to the proceeding to provide that confidential information, which will limit the ability of the Canadian International Trade Tribunal's staff to consolidate the information and put it in a pre-hearing staff report so that an economic analysis can be undertaken by the members in rendering their decision as to whether or not there is injury to the domestic industry.
The Deputy Chair: Ms. Cherniak, proposed section 12 states that the chief administrator cannot, in performing his or her role, exercise any of the powers, duties, functions conferred on the administrative tribunals or their members, and proposed sections 12 and 14 together delineate the relative roles of the service and tribunals. The chief administrator's responsibility is to provide services and facilities to support the work of tribunals, while the tribunals retain all the powers, duties and functions which the law has conferred on them.
When you centralize a business and you provide services, it appears that the type of services they usually provide can be HR, IT or finance. Then the guts of the operation for efficiency continue in terms of the expertise.
You mentioned in your comments that it ``may have negative consequences.'' Is there an issue of how the tribunals are going to work, or is there fear on your part that they will transfer everything, including the expertise, to the chief administrator? What is the issue in your mind?
Ms. Todgham Cherniak: That is a very good question. Because all staff members are being transferred, the expertise in the staff is being transferred also to this merged entity. The five, six or seven members will stay as the Canadian International Trade Tribunal, but all the research staff, the legal staff, the registry staff — there's a host of administrative staff — will be transferred to this merged entity.
A lot of that very important expertise is in the administrative staff. The tribunal members cannot have a term of more than eight years, but some of the tribunal staff have been there their entire careers. They have great experience in analyzing trade data, looking at the pricing and being able to research what other countries have brought anti- dumping cases against the same country and the same product.
That is very core expertise. They assist the tribunal members in writing their decisions and in consolidating the information, so they can make the right decision. Those staff are going to all be transferred to this merged entity.
The Deputy Chair: But it seems that there's a fear that this chief administrator will suddenly become omnipotent and influence decisions of tribunals. It appears in proposed section 12 that the chief administrator — at least it says — cannot, in performing his or her role, exercise any of the powers, duties or functions conferred on the administrative tribunal.
Are we going to wait to see how things unfold? Because you are really changing the management structure, and when you go from a decentralized to a centralized function, there are always changes. But it appears here that the actual role of the tribunals does not change. I wondered about your comments on that.
Ms. Todgham Cherniak: The role of the tribunal does not change, but the administrator doesn't have the power to render the decisions. The administrator is going to be able to manage the support staff, and if the staff are not allocated properly or if they have staff from another tribunal — let us say the cultural tribunal is put on a CITT case, they won't have the expertise to be able to manage that case. Because the time frames are so short, there's no time for a learning curve.
More important, Canada's international obligations under a number of WTO agreements, such as what I call the ``anti-dumping agreement,'' the Subsidies and Countervailing Measures Agreement, the Agreement on Government Procurement, the Agreement on Safeguards; then NAFTA and Canada's other free trade agreements — these all require that there be a level of independence between the government and the decision-maker of these trade cases.
If you step back and look at it from the perspective of, say, the United States, there might be a concern that an American party will not have a fair shake at the tribunal if you've got the support staff under the Government of Canada being the Department of Justice.
The Deputy Chair: There's so much data and information on this for our members, trying to get our head around it is — I'm not going to say it is a challenge, but it takes some reading.
Proposed section 14 confirms that, for greater certainty, the chairpersons of the specified tribunals continue to supervise and direct the substantive work of their tribunals, as provided for in the tribunal statute.
It should be read that, with proposed section 12, which indicates that the chief administrator's statutory authority does not extend to performing the duties or function conferred by law on tribunals or their members — I guess you are challenging that assumption; is that correct?
Ms. Todgham Cherniak: There's a fundamental difference between the members of the tribunal — the five, six or seven individuals who are appointed as members — and the support staff. They're not going to affect the chairperson's ability to render a decision; however, the administrative assistance that chairperson receives in making a decision and gathering the information — because you gather the facts, then you gather the law, then you apply the law and then you make a decision — the support staff are going to be affected. That could negatively affect the ability of the members to make the decisions within the timeframes in which they're supposed to make decisions — but also make their decisions in a way that doesn't have the apprehension of bias or perceived conflict of interest.
Senator Callbeck: Right now, the head of the tribunal is not an order-in-council or Governor-in-Council appointment, is it?
Ms. Todgham Cherniak: I do not believe so. I believe he was appointed by the Minister of Finance.
Senator Callbeck: Appointed by the Minister of Finance?
Ms. Todgham Cherniak: Yes. I believe it is the Department of Finance Canada that appoints.
Senator Callbeck: Now you are going to have a chief administrator for a five-year term over the whole entity?
Ms. Todgham Cherniak: I'm not sure I understand your question.
Senator Callbeck: The new merged entity that is being set up is going to have a chief administrator.
Ms. Todgham Cherniak: Yes.
Senator Callbeck: Who will be appointed by Governor-in-Council, right? For five years.
Ms. Todgham Cherniak: Yes.
Senator Callbeck: Is that a full-time position?
Ms. Todgham Cherniak: It is my understanding that it is a full-time position.
Senator Callbeck: You say you weren't consulted on this. Do you know of any individual or any group that the government has talked to?
Ms. Todgham Cherniak: The Canadian Bar Association, in particular, the Commodity Tax, Customs and Trade Law — and I have also spoken to the International Law Section — we weren't consulted with respect to the inclusion of the Canadian International Trade Tribunal. In consultations with other sections, I understand they were not consulted, either.
Senator Callbeck: I'm confused as to whether it is 10 or 11 tribunals. In the documents we have here, there's one listing that includes the Canadian Agricultural Review Tribunal, and that would make it 11. We seem to be talking about 10. Has the Canadian Agriculture Review Tribunal, then, been eliminated? Or why is it in here?
Ms. Todgham Cherniak: If I can refer you to clause 377 of C-31, there's a list: the Canadian Cultural Property Export Review Board, the Canadian Human Rights Tribunal, the Canada Industrial Relations Board, the Competition Tribunal, the Review Tribunal, the Canadian International Trade Tribunal, the Transportation Appeal Tribunal of Canada, the Social Security Tribunal, the Public Servants Disclosure Protection Tribunal, the Specific Claims Tribunal, the Public Service Labour Relations and Employment Board. So that's 11.
Senator Callbeck: It is 11, but I note proposed section 2 specifies the following definitions apply, in the ATSSC Act — administrative tribunal — the tribunals listed are — there's only 10.
Ms. Todgham Cherniak: I don't see that in my version of the legislation, so you might be looking at that from another document. I'm sorry.
The Deputy Chair: I think you are talking about Schedule 6 of the bill, which is the very last page, 362, which outlines —
Senator Callbeck: I'm looking at the binder — the information that came along with C-31. I'm not looking at the act. The lists are different.
The Deputy Chair: Okay. Do you have some more questions?
Senator Callbeck: No, that's fine. Thanks.
The Deputy Chair: Are there any other senators with questions? This is an important subject, and there is a lot of information to be able to digest.
We have about two minutes left. Final comments?
Senator Mockler: I will have a question. With the experience you have internationally and the experience you have had with the tribunals, what would be the rationale for doing what we're doing or proposing?
Ms. Todgham Cherniak: With the addition of the Canadian International Trade Tribunal or creating this merged entity?
Senator Mockler: Creating it.
Ms. Todgham Cherniak: I'm going to assume that the purpose of creating the merged entity is to create efficiencies but also seeing that it's in a budget bill, it would be to save taxpayer dollars. That's why some of my prepared statement said there is potential — with the Canadian International Trade Tribunal — that there will be costs if we don't carefully consider them due to the fact that we have international obligations. That's one of the reasons we're asking that the Canadian International Trade Tribunal is recommended to be removed from the list at this point in time. Then there are the other two tribunals, the Public Servants Disclosure Protection Tribunal and the Canadian Industrial Relations Board.
Senator Mockler: I have a last comment and a question. With the statement you just made, there seems to be an agreement that there will be efficiency in saving tax dollars; is that correct?
Ms. Todgham Cherniak: Sorry, I didn't fully hear you.
Senator Mockler: I said, with the statement you just made, it seems that there will be efficiency and savings for tax dollars.
Ms. Todgham Cherniak: Well, I believe that's the purpose of adding it into the budget bill and that was the intention behind it. But if the issues aren't fully considered, especially with the Canadian International Trade Tribunal, there may not be the effect that the government hopes for with the savings and the efficiencies.
The Deputy Chair: Thank you to our witnesses for your time and points of view.
We now welcome Gregory Thomas, Federal Director, Canadian Taxpayers Federation, to speak to Part 6. There are two divisions listed here but I think Mr. Thomas would like to focus on Division 29, which deals with the centralizing of the 11 tribunals. Would you like to make some comments to start, Mr. Thomas?
Gregory Thomas, Federal Director, Canadian Taxpayers Federation: Yes, senator. On behalf of the Canadian Taxpayers Federation, I'd like to extend our thanks for this opportunity to discuss the bill.
Our organization, Canada's largest taxpayer advocacy group, has 84,000 supporters across Canada. We accept no funds from government. Last year we raised close to $4 million on the strength of 22,000 individual donations from Canadians who believe in lower taxes, less waste and more accountability from government.
We applaud this initiative of the government in the legislation before the Senate and the formation of the proposed administrative tribunals support service of Canada act because we think it's a practical and modern approach to providing the services that Canada's administrative tribunals require.
By creating a specialized agency and bringing together staff and expertise from the various tribunals, you create an organization that has the scale and flexibility to accommodate expanded workloads on the part of many of these tribunals. You create an opportunity for the support staff to engage in professional development and advancement as they move from less complicated roles to leadership roles within the support function. You create an opportunity for an excellent agency that can give the members of tribunals the support they need in dealing with these often very complex and emotion-ridden issues that Canadians who appear before these tribunals bring, and provide adjudicators the depth, professionalism and support they require.
From the point of view of some of the issues we have with the federal government, generally speaking, because the federal government has 700 programs, hundreds of thousands of staff and thousands of managers, as we've seen at a department like the Department of National Defence, it is possible for fiefdoms to be created, especially for very small tribunals. Even though they're agencies of the federal government they fall under the dominance of a single individual, someone who may be around for a long time, and it may be decades before the attention of parliamentarians is focused on the administration of these tribunals and always then in a sensational manner.
Rather than having an organization with sufficient scale that provides for accountability and procedural fairness, you have these tiny fiefdoms within government that are effectively invisible to parliamentarians and invisible to the public and it provides a situation where there may be not enough work for the tribunal or there may be an individual in the tribunal who has been dominant for a number of years.
We believe that by creating an administrative tribunal support service, we will create an agency that is sufficiently large and sophisticated that will not only deliver the services to adjudicators that they require but also to be accountable under the estimates and committee processes to parliamentarians. We believe this is a comprehensively positive reform, and we support it wholeheartedly.
The Deputy Chair: Thank you very much, Mr. Thomas.
Senator Eaton: Thank you, Mr. Thomas. One of our previous witnesses was worried that that the public service dealing with the Canadian International Trade Tribunal would be lost and that the expertise would be lost.
Is my understanding correct that these people with expertise in certain areas are not lost but are pooled so they can be called on? During a tribunal hearing, people with expertise in a certain subject would be sitting there to help the tribunal or produce the facts?
Mr. Thomas: Certainly, that concern would be a legitimate one if the facts were that Canadians would actually be losing the expertise of these individuals, but these experienced professionals will be continuing in government. Then I think it becomes incumbent upon the leadership of the agency and up the line to the minister responsible to see to it that the agency is administered in such a way that specific competencies are maintained and advanced and that people who have experience serving with some of the other tribunals also get some exposure in some of these fields so that they're not honeycombed, as it were, in an area and where their flexibility isn't reduced.
Our hope would be that the management, the director and the person acting as deputy head of this agency, would get the direction, both administratively and politically, to maintain core competencies within the reorganized agency.
Senator Mockler: Thank you, Mr. Thomas. I will borrow a previous question from Senator Callbeck. Professor Lee said to the committee last week that all government employees should be essential. When you talk about negotiations, they should all be essential. Earlier this morning, we had other witnesses saying that they were not consulted.
In the experience of the Canadian Taxpayers Federation, do you believe statements like, ``We don't consult enough''? Are you being consulted when we make proposals, such as when you came here this morning saying that you support this?
Mr. Thomas: Senator, our organization is small and we have a lean budget. We have a couple of professional staff in our Ottawa office and a couple of interns, generally speaking. So on a subject such as this one, we would be overwhelmed if we were consulted in advance about a reform such as the consolidation of the administrative support for tribunals. With some government agencies, like the CRA, for example, we get a dozen consultation requests per year, and we have to be selective about what we respond to because it's a substantial draw on our time and resources to bring a thoughtful response.
With regard to Division 29, I don't think we would have expected to have been consulted in advance of the legislation dropping. We're not big fans of the omnibus; we don't like riding the omnibus, but in this specific case, we're grateful to have the opportunity at Senate stage to offer our comments on it.
Senator Mockler: Is it fair to say that you follow the process very carefully?
Mr. Thomas: The legislative process?
Senator Mockler: Yes.
Mr. Thomas: Well, we follow it where it concerns legislation that we believe is of great concern to our supporters, and in a more general sense, when we discover legislation that advances our causes of less waste and more accountability.
[Translation]
Senator Chaput: Do you support this initiative, mostly for the savings? Are we going to save anything? Is it going to cost less?
Mr. Thomas: As I said in my presentation, it is clear to us that a number of these tribunals —
[English]
They don't have the necessary scale to provide service. There are a few problems with having a balkanized system of administrative and professional support for administrative tribunals. In some cases, you have professional staff capturing tribunal members, in effect. The tribunal members come and go; the professional staff stays. There are only a limited number of professional staff and their workloads vary, so you have a feast or famine element to the flow of their workloads, and there isn't accountability to Parliament or to the estimates process to the public or even through a department to ensure that the work is divided up in an even way and that key priorities are dealt with.
So you may have a tremendous number of tribunal adjudication requests to a given tribunal and then things can go quiet for a period of time. Previously, you had that tribunal's entire support staff on standby, essentially, waiting for that flood of work to happen.
We don't believe it's just economizing; we believe this is a more efficient way to do it and it's better for the professionals in their career development and the overall management of the process.
Senator Chaput: If I understand clearly what you just said, it would be in terms of efficiency and accountability?
Mr. Thomas: Efficiency, accountability, scale and professional development.
Senator Callbeck: Thank you for coming, Mr. Thomas. In the division we're dealing with, Division 29, administrative tribunal support services, we're setting up a new entity here, and this takes up clauses 376 to 482. In other words, this is a major thing in this legislation. Do you not feel it would have been better to have this in stand- alone legislation rather than to have it lumped in an omnibus bill of hundreds and hundreds of pages with all kinds of things in it?
Mr. Thomas: Yes. As I mentioned before, we don't like riding the omnibus. Our supporters tell us that they would rather have individual pieces of legislation.
In the other house, we would like house leaders to find a way to return to traditional legislation. Evidently, through their years of minority leadership, the government felt put upon by the opposition. They didn't feel that legislation was being dealt with in a straightforward manner and that politics trumped the legislative duties of the government and opposition to consider legislation in a timely manner.
We think the government has a point. We also think that the opposition has a point, that they aren't being afforded the opportunity to thoroughly debate legislation they consider to be controversial.
These omnibus bills are not in the public interest. They aren't serving the public, they aren't serving Parliament and we're opposed to them on principle.
Senator Callbeck: I certainly agree that there should be stand-alone legislation. I would like to see the government get back to the day when budget implementation bills deal with items that are in the budget, rather than including almost anything.
I was surprised to hear you say that you wouldn't want or expect to be consulted by government on this, yet you're pleased to have the opportunity this morning to come before a Senate committee. My question is: Why wouldn't you want to be consulted by government?
Mr. Thomas: My answer was with regard to this specific piece of legislation. My point is that we have a couple of professional staff in Ottawa, communications or researchers, if you will. The Government of Canada at last count, by our last access to information request, had 4,814 communications officers and hundreds of millions of dollars budgeted for communications. It's beyond the resources of any not-for-profit organization to respond to every piece of legislation that flows through Parliament in a given year.
I was saying that we have to pick our spots. Although we wholeheartedly support the idea of having an administrative tribunals support service, had the government approached us pre-budget we would have said then what we say now: We think it's a great idea.
The Deputy Chair: Mr. Thomas and Senator Callbeck, I hate to interrupt, but I promised everyone that we would be out of here by 11:35, and it is 11:34.
Mr. Thomas, I thank you very much for coming in and speaking with us today, and for your time. Members, the meeting is adjourned.
(The committee adjourned.)