Proceedings of the Standing Senate Committee on
National Finance
Issue 15 - Minutes of Proceedings
OTTAWA, Wednesday, September 17, 2003
(24)
[English]
The Standing Senate Committee on National Finance met at 6:16 p.m, this day, in room 705, Victoria Building, the Chair, the Honourable Senator Murray, P.C., presiding.
Members of the committee present: The Honourable Senators Beaudoin, Biron, Day, Ferretti Barth, Finnerty, Gauthier, Hubley, Kinsella, Mahovlich, Murray, P.C., Oliver and Wiebe (12).
In attendance: Mr. Guy Beaumier, and Stephen Laurent, Research Officers, Library of Parliament.
Also in attendance: The official reporters of the Senate.
Pursuant to the Order of Reference adopted by the Senate on June 13, 2003, the committee continued its consideration of Bill C-25, the Public Service Modernization Act.
Clause-by clause consideration.
It was agreed to consider proposed amendments to the Bill.
It was moved by the Honourable Senator Oliver that clause 2 be amended:
(a) on page 88, by replacing lines 37 to 40 with the following:
(2) The Canadian Human Rights Commission may deal with an issue referred to in subsection (1), if it is of the opinion that it is in the public interest to do so, as if the issue were a complaint under the Canadian Human Rights Act, and the adjudication proceedings shall be suspended on the request of the Canadian Human Rights Commission.
(3) If the Canadian Human Rights Commission does not decide to proceed with the issue as a complaint under the Canadian Human Rights Act within 30 days after the adjudication proceedings are suspended, the adjudication proceedings shall be resumed.'';
(b) on page 91, by replacing lines 9 to 12 with the following:
(2) The Canadian Human Rights Commission may deal with an issue referred to in subsection (1), if it is of the opinion that it is in the public interest to do so, as if the issue were a complaint under the Canadian Human Rights Act, and the adjudication proceedings shall be suspended on the request of the Canadian Human Rights Commission.
(3) If the Canadian Human Rights Commission does not decide to proceed with the issue as a complaint under the Canadian Human Rights Act within 30 days after the adjudication proceedings are suspended, the adjudication proceedings shall be resumed; and
(c) on page 92, by replacing lines 26 to 29 with the following:
(2) The Canadian Human Rights Commission may deal with an issue referred to in subsection (1), if it is of the opinion that it is in the public interest to do so, as if the issue were a complaint under the Canadian Human Rights Act, and the adjudication proceedings shall be suspended on the request of the Canadian Human Rights Commission.
(3) If the Canadian Human Rights Commission does not decide to proceed with the issue as a complaint under the Canadian Human Rights Act within 30 days after the adjudication proceedings are suspended, the adjudication proceedings shall be resumed.
After debate, the question being put on the motion it was rejected by a show of hands: yeas 3; nays 7; abstentions 1.
It was moved by the Honourable Senator Oliver that clause 12 be amended on page 139, by replacing lines 1 to 4 with the following:
(6) The Canadian Human Rights Commission may deal with an issue referred to in subsection (5), if it is of the opinion that it is in the public interest to do so, as if the issue were a complaint under the Canadian Human Rights Act, and the proceedings before the Tribunal shall be suspended on the request of the Canadian Human Rights Commission.
(6.1) If the Canadian Human Rights Commission does not decide to proceed with the issue as a complaint under the Canadian Human Rights Act within 30 days after the proceedings before the Tribunal are suspended, the proceedings before the Tribunal shall be resumed.'
After debate, the question being put on the motion it was rejected by a show of hands: yeas 3; nays 8.
It was moved by the Honourable Senator Gauthier that clause 12 be amended on page 127 by adding section 33.1:
``An advertised appointment process must be communicated in both official languages.''
After debate, the question being put on the motion, it was rejected on the following division:
YEAS
Beaudoin, Gauthier, Kinsella, Oliver (4).
NAYS
Day, Ferretti Barth, Finnerty, Hubley, Mahovlich, Wiebe (6).
ABSTENTIONS
Biron (1).
It was moved by the Honourable Senator Gauthier that clause 12 be amended on page 145 by adding to section 88, subsection (5.1):
``The Governor in Council shall ensure that members of the tribunal, as a group, are able to hear complaints in both official languages, in accordance with the provisions of section 16 of the Official Languages Act.''
After debate, the question being put on the motion, it was rejected on the following division:
YEAS
Beaudoin, Gauthier, Kinsella, Oliver (4).
NAYS
Day, Ferretti Barth, Finnerty, Hubley, Mahovlich, Wiebe (6).
ABSTENTIONS
Biron (1)
It was moved by the Honourable Senator Gauthier that clause 24 be amended on page 172 by adding to section 4, subsection (e.1):
``provide language training so that public servants can reach the proficiency levels required for positions designated bilingual in order to ensure that the Official Languages Act is implemented and to help employees achieve their career goals.''
After debate, the question being put on the motion, it was rejected on the following division:
YEAS
Beaudoin, Gauthier, Kinsella, Oliver (4).
NAYS
Day, Ferretti Barth, Finnerty, Hubley, Mahovlich, Wiebe (6).
ABSTENTIONS
Biron (1).
It was moved by the Honourable Senator Gauthier that clause 12 be amended on page 142 by adding after paragraph 77(1)(c):
``(d) the failure of the Commission to communicate the advertised appointment process in both official languages, as required by subsection 33(2).''
The Chair judged the amendment not to be receivable since it was consequential to an amendment previously rejected by the Committee.
It was moved by the Honourable Senator Kinsella that clause 2 be amended on page 99 by adding after line 8 the following:
PART 2.1
PROTECTION OF WHISTLEBLOWERS
Definitions
238.1 The following definitions apply in this Part.
``Commissioner'' means the commissioner of the Public Service Commission who has been designated as Public Interest Commissioner under section 238.3.
``employee'' has the same meaning as in Part 2.
``law in force in Canada'' means a provision of an Act of Parliament or of the legislature of a province or an instrument issued under the authority of such an Act that is in force at the relevant time.
``minister'' means a member of the Queens Privy Council for Canada who holds office as a minister of the Crown.
``wrongful act or omission'' means an act or omission that is:
(a) an offence against a law in force in Canada;
(b) likely to cause a significant waste of public money;
(c) likely to endanger public health or safety or the environment;
(d) a significant breach of an established public policy or of a directive in the written record of the public service; or
(e) one of gross mismanagement or an abuse of authority.
Purpose
238.2 The purpose of this Part is
(a) to provide for the education of persons working in the public service on ethical practices in the workplace and the promotion of the observance of these practices;
(b) to protect the public interest by providing a means for employees of the public service to make allegations, in confidence, of wrongful acts or omissions in the workplace, to an independent Commissioner who will investigate them and seek to have the situation dealt with, and who will report to Parliament in respect of problems that are confirmed but have not been dealt with; and
(c) to protect employees of the public service from retaliation for having made or for proposing to make, in good faith and on the basis of reasonable belief, allegations of wrongdoing in the workplace.
Public Interest Commissioner
Designation
238.3.(1) The Governor in Council shall designate one of the commissioners of the Public Service Commission to serve as Public Interest Commissioner.
Part of role of Commission
(2) The role of Public Interest Commissioner is a part of the function of the Public Service Commission.
Powers
(3) The Commissioner may exercise the powers of office of a commissioner of the Public Service Commission for the purposes of this Part.
Information made public
238.4 (1) Subject to section 238.9, the Commissioner may make public any information that comes to the attention of the Commissioner as a result of the performance or exercise of the Commissioner's duties or powers under this Part if, in the Commissioner's opinion, it is in the public interest to do so.
Disclosure of necessary information
(2) The Commissioner may disclose, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose, information that, in the Commissioner's opinion, is necessary to
(a) conduct an investigation under this Part; or
(b) establish the grounds for findings or recommendations contained in any report made under this Part.
Disclosure in the course of proceedings
(3) The Commissioner may disclose, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose, information necessary to assist
(a) a prosecution for an offence under section 238.20; or
(b) a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Part.
Disclosure of offence
(4) The Commissioner may disclose to the Attorney General of Canada or of a province, as the case may be, information relating to the commission of an offence against any law in force in Canada that comes to the attention of the Commissioner as a result of the performance or exercise of the Commissioner's duties or powers under this Part if, in the Commissioner's opinion, there is evidence of an offence.
Not competent witness
238.5 The Commissioner or person acting on behalf or under the direction of the Commissioner is not a competent witness in respect of any matter that comes to their knowledge as a result of the performance or exercise of the Commissioner's duties or powers under this Part in any proceeding other than
(a) a prosecution for an offence under section 238.20; or
(b) a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made under this Part.
Protection of Commissioner
238.6 (1) No criminal or civil proceedings lie against the Commissioner, or against any person acting on behalf or under the direction of the Commissioner, for anything done, reported or said in good faith as a result of the performance or exercise or purported performance or exercise of the Commissioner's duties or powers under this Part.
Libel or slander
(2) For the purposes of any law relating to libel or slander,
(a) anything said, any information supplied or any record or thing produced in good faith and on the basis of reasonable belief in the course of an investigation carried out by or on behalf of the Commissioner under this Part is privileged; and
(b) any report made in good faith by the Commissioner under this Part and any fair and accurate account of the report made in good faith for the purpose of news reporting is privileged.
Education
Dissemination
238.7 The Commissioner shall promote ethical practices in the public service and a positive environment for giving notice of wrongdoing, by disseminating knowledge of this Part and information about its purposes and processes and by such other means as seem fit to the Commissioner.
Notice of Wrongful Act or Omission
Notice by employee
238.8 (1) An employee who has reasonable grounds to believe that another person working for the public service or in the public service workplace has committed or intends to commit a wrongful act or omission
(a) may file with the Commissioner a written notice of allegation; and
(b) may request that their identity be kept confidential with respect to the notice.
Form and content
(2) A notice under subsection (1) shall identify
(a) the employee making the allegation, and be signed by that person;
(b) the person against whom the allegation is being made; and
(c) the grounds on which the employee believes that the act or omission is wrongful and has been or will be committed, giving the particulars that are known to the employee and the reasons and the grounds on which the employee believes the particulars to be true.
No breach of oath
(3) A notice by an employee to the Commissioner under subsection (1), given in good faith and on the basis of reasonable belief, is not a breach of any oath of office or loyalty or secrecy taken by the employee and, subject to subsection (4), is not a breach of duty.
Solicitor-client privilege
(4) No employee, in giving notice under subsection (1), may violate any law in force in Canada or rule of law protecting privileged communications as between solicitor and client, unless the employee has reasonable grounds to believe there is a significant threat to public health or safety.
Waiver
(5) An employee who has made a request under paragraph (1)(b) may waive the request or any resulting right to confidentiality, in writing, at any time.
Rejected notice
(6) Where the Commissioner is not able or willing to give an assurance of confidentiality in response to a request made under paragraph (1)(b), the Commissioner may reject the notice and take no further action on it, but shall keep it confidential.
Confidentiality
238.9 Subject to subsection 238.11(5) and any other obligation of the Commissioner under this Part or any law in force in Canada, the Commissioner shall keep confidential the identity of an employee who has filed a notice with the Commissioner under subsection 238.8(1) and to whom the Commissioner has given an assurance that, subject to this Part, their identity will be kept confidential.
Initial review
238.10 On receiving a notice under subsection 238.8(1), the Commissioner shall review it, may ask the employee for further information and may make such further inquiries as, in the opinion of the Commissioner, may be necessary.
Rejected notices
238.11 (1) The Commissioner shall reject and take no further action on a notice given under subsection 238.8(1), if the Commissioner makes a preliminary determination that the notice
(a) is trivial, frivolous or vexatious;
(b) fails to allege or give adequate particulars of a wrongful act or omission;
(c) breaches subsection 238.8(4); or
(d) was not given in good faith or on the basis of reasonable belief.
False statements
(2) The Commissioner may determine that a notice that contains a statement that the employee knew to be false or misleading at the time it was made was not given in good faith.
Mistaken facts
(3) The Commissioner shall not determine that a notice was not given in good faith for the sole reason that it contains mistaken facts unless the Commissioner has grounds to believe that there was adequate opportunity for the employee to discover the mistake.
Report
(4) Where the Commissioner has made a determination under subsection (1), the Commissioner shall, in writing and on a timely basis, advise the employee who gave notice under subsection 238.8(1) of that determination.
Report to official and minister
(5) Where the Commissioner determines under subsection (1) that a notice was given in breach of subsection 238.8(4) or was not given in good faith and on the basis of reasonable belief, the Commissioner may advise
(a) the person against whom the allegation was made, and
(b) the minister responsible for the employee who gave the notice of the matters alleged and the identity of the employee.
Valid notice
238.12 (1) The Commissioner shall accept a notice given under subsection 238.8(1) where the Commissioner determines that the notice
(a) is not trivial, frivolous or vexatious;
(b) alleges and gives adequate particulars of a wrongful act or omission;
(c) does not breach subsection 238.8(4); and
(d) was given in good faith and on the basis of reasonable belief.
Report to employee
(2) Where the Commissioner has made a determination under subsection (1), the Commissioner shall, in writing and on a timely basis, advise the employee who gave notice under subsection 238.8(1) of that determination.
Investigation and Report
Investigation
238.13 (1) The Commissioner shall investigate a notice accepted under section 238.12, and, subject to subsection (2), shall prepare a written report of the Commissioner's findings and recommendations.
Report not required
(2) The Commissioner is not required to prepare a report if satisfied that
(a) the employee ought to first exhaust other procedures available to the employee;
(b) the matter could more appropriately be dealt with, initially or completely, by means of a procedure provided for under a law in force in Canada other than this Part; or
(c) the length of time that has elapsed between the time the wrongful act or omission that is the subject- matter of the notice occurred and the date when the notice was filed is such that a report would not serve a useful purpose.
Report to employee
(3) Where the Commissioner has made a determination under subsection (2), the Commissioner shall, in writing and on a timely basis, advise the employee who gave notice under subsection 238.8(1) of that determination.
Confidential information
(4) Information related to an investigation is confidential and shall not be disclosed, except in accordance with this Part.
Report to minister
(5) The Commissioner shall provide the minister responsible for the employee against whom an allegation has been made, on a timely basis and in no case later than one year after the Commissioner receives the notice, with a copy of the report made under subsection (1).
Minister's response
238.14 (1) A minister who receives a report under subsection 238.13(5) shall consider the matter and respond to the Commissioner.
Content of response
(2) The response of a minister under subsection (1) shall specify the action the minister has taken or proposes to take to deal with the Commissioner's report, or that the minister proposes to take no action.
Further responses
(3) A minister who, for the purposes of this section, specifies action proposed to be taken shall give such further responses as are requested by the Commissioner until such time as the minister advises that the matter has been dealt with.
Emergency public report
238.15 (1) The Commissioner may require the President of the Treasury Board to cause an emergency report prepared by the Commissioner to be laid before both Houses of Parliament on the next day that the House sits if, in the Commissioner's opinion, it is in the public interest to do so.
Content of report
(2) A report prepared by the Commissioner for the purposes of subsection (1) shall describe the substance of a report made to a minister under subsection 238.13(5) and the minister's response or lack thereof under section 238.14.
Annual report
238.16 (1) The Public Service Commission shall include in the annual report to Parliament made pursuant to section 23 of the Public Service Employment Act a statement of activity under this Act prepared by the Commissioner that includes
(a) a description of the Commissioner's activities under section 238.7;
(b) the number of notices received pursuant to section 238.8;
(c) the number of notices rejected pursuant to sections 238.8 and 238.11
(d) the number of notices accepted pursuant to section 238.12;
(e) the number of accepted notices that are still under investigation pursuant to subsection 238.13(1);
(f) the number of accepted notices that were reported to ministers pursuant to subsection 238.13(5);
(g) the number of reports to ministers pursuant to subsection 238.13(5) in respect of which action satisfactory to the Commissioner has been taken;
(h) the number of reports to ministers pursuant to subsection 238.13(5) in respect of which action satisfactory to the Commissioner has not been taken;
(i) an abstract of the substance of all reports to ministers pursuant to subsection 238.13(5) and the responses of ministers pursuant to section 238.14; and
(j) where the Commissioner is of the opinion that the public interest would be best served, the substance of an individual report made to a minister pursuant to subsection 238.13(5) and the response or lack thereof of a minister pursuant to section 238.14.
Annual report
(2) The Public Service Commission may include in the annual report to Parliament made pursuant to section 23 of the Public Service Employment Act an analysis of the administration and operation of this Part and any recommendations with respect to it.
Prohibitions
False information
238.17 (1) No person shall give false information to the Commissioner or to any person acting on behalf or under the direction of the Commissioner while the Commissioner or person is engaged in the performance or exercise of the Commissioner's duties or powers under this Part.
Bad faith
(2) No employee shall give a notice under subsection 238.8(1) in bad faith.
No disciplinary action
238.18 (1) No person shall take disciplinary action against an employee because
(a) the employee, acting in good faith and on the basis of reasonable belief, has disclosed or stated an intention to disclose to the Commissioner that a person working for the public service or in the public service workplace has committed or intends to commit a wrongful act or omission;
(b) the employee, acting in good faith and on the basis of reasonable belief, has refused or stated an intention to refuse to commit an act or omission the employee believes would be a wrongful act or omission under this Part;
(c) the employee, acting in good faith and on the basis of reasonable belief, has done or stated an intention of doing anything that is required to be done in order to comply with this Part; or
(d) the person believes that the employee will do anything referred to in paragraph (a), (b) or (c).
Definition
(2) In this section, ``disciplinary action'' means any action that adversely affects the employee or any term or condition of the employee's employment or adversely affects the employee's opportunity for future employment within or outside the public service, and includes:
(a) harassment;
(b) financial penalty;
(c) affecting seniority;
(d) suspension or dismissal;
(e) denial of meaningful work or demotion;
(f) denial of a benefit of employment;
(g) refusing to give a reference; or
(h) any other action that is disadvantageous to the employee.
Rebuttable presumption
(3) A person who takes disciplinary action against an employee within two years after the employee gives a notice to the Commissioner under subsection 238.8(1) shall be presumed, in the absence of a preponderance of evidence to the contrary, to have taken the disciplinary action against the employee contrary to subsection (1).
Disclosure prohibited
238.19 (1) Except as authorized by this Part or any other law in force in Canada, no person shall disclose to any other person the name of the employee who has given a notice under subsection 238.8(1) and has requested confidentiality under that subsection, or any other information the disclosure of which reveals the employee's identity, which may include the existence or nature of a notice, without the employee's consent.
Exception
(2) Subsection (1) does not apply where the notice was given in breach of subsection 238.8(4) or was not given in good faith and on the basis of reasonable belief.
Enforcement
Offences and punishment
238.20 A person who contravenes subsection 238.8(4), section 238.17, or subsection 238.18(1) or 238.19(1) is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000.
Employee Recourse
Recourse available
238.21 (1) An employee against whom disciplinary action is taken contrary to section 238.18 is entitled to use every recourse available to the employee under the law, including grievance proceedings provided for under an Act of Parliament or otherwise.
Recourse not lost
(2) An employee may seek recourse as described in subsection (1) whether or not proceedings based upon the same allegations of fact are or may be brought under section 238.20.
Benefit of presumption
(3) In any proceedings of a recourse referred to in subsection (1), the employee is entitled to the benefit of the presumption established in subsection 238.18(3).
Transitional
(4) Where grievance proceedings are current or pending on the coming into force of this Part, the proceedings shall be dealt with and disposed of as if this Part had not been enacted.''.
After debate, the question being put on the motion it was rejected by a show of hands: yeas 3; nays 6; abstentions 1.
It was moved by the Honourable Senator Oliver that clause 12 be amended on page 127:
(a) by replacing line 22 with the following:
``34. (1) Subject to subsection (1.1), for purposes of eligibility in any''; and
(b) by adding after line 30 the following:
``(1.1) For purposes of eligibility in an advertised external appointment process, the area of selection, in respect of geographic criteria, shall be national, unless the Commission is of the opinion that a national area of selection is not in the best interests of the public service. ``.
After debate, the question being put on the motion it was rejected by a show of hands: yeas 3; nays 7.
It was moved by the Honourable Senator Beaudoin that clause 12 be amended on page 119, by replacing line 30 with the following:
``accordance with this Act; (b.1) notwithstanding any other Act, to conduct audits and to report on the staffing program and the general staffing practices of organizations or Crown corporations named in Schedule I.1, II, III, IV or V to the Financial Administration Act that are not subject to this Act and for which the Commission does not have the exclusive authority to make appointments, either on its own initiative or upon request by a committee of the Senate, of the House of Commons or of both Houses of Parliament; and''.
After debate, the question being put on the motion it was rejected by a show of hands: yeas 3; nays 7.
It was moved by the Honourable Senator Beaudoin that clause 12 be amended on page 126, by replacing lines 8 to 12 with the following:
``30. (1) Appointments by the Commission to or from within the public service shall be free from political influence and shall be made on the basis of merit by competition or by such other process of personnel selection designed to establish the relative merit of candidates as the Commission considers is in the best interests of the public service.
(1.1) Despite subsection (1), an appointment may be made on the basis of individual merit in the circumstances prescribed by the regulations of the Commission.
(2) An appointment is made on the basis of individual''.
After debate, the question being put on the motion it was rejected by a show of hands: yeas 2; nays 7.
It was agreed to proceed by considering the Parts of the bill.
It was agreed to stand the title and clause 1 of the bill.
It was agreed that Part 1 carry.
It was agreed that Part 2 carry.
It was agreed that Part 3 carry.
It was agreed that Part 4 carry.
It was agreed that Part 5 carry.
It was agreed that Part 6 carry.
It was agreed that Part 7 carry.
It was agreed that Part 8 carry.
It was agreed that Part 9 carry.
It was agreed that the Schedule 1 carry.
It was agreed that the Schedule 2 carry.
It was agreed that clause 1 carry.
It was agreed that the title carry.
It was agreed that the Bill carry on division.
It was agreed that the Chairman report the Bill without amendment to the Senate.
At 8:45 p.m., the Committee adjourned to the call of the Chair.
ATTEST:
Tõnu Onu
Clerk of the Committee