Evidence of meeting #47 for National Defence in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was board's.
A recording is available from Parliament.
3:35 p.m.
Conservative
The Chair Conservative Maxime Bernier
Good afternoon, everyone. Welcome to meeting no. 47 of the Standing Committee on National Defence.
Today we are pleased to have with us the representatives of the Canadian Forces Grievance Board, Bruno Hamel and Caroline Maynard.
I will allow you 10 minutes—we're being generous today. Then committee members will ask you their questions. Thank you for being with us.
Mr. Hamel, go ahead, please.
February 9th, 2011 / 3:35 p.m.
Bruno Hamel Chairperson, Canadian Forces Grievance Board
Thank you, Mr. Chairman.
Mr. Chairman and honourable members, good afternoon.
It's a pleasure to be here with you today to answer your questions concerning the Canadian Forces Grievance Board's role in the military grievance process, given that there are provisions in Bill C-41 that directly affect us.
Joining me here today is Caroline Maynard, general counsel and director of operations at the board.
I would like to begin by giving you an introduction to the board.
In operation since June 2000, the Canadian Forces Grievance Board is a quasi-judicial tribunal which is independent from the Department of National Defence and the Canadian Forces; it is, in effect, the external component of the Canadian Forces grievance process.
Since its creation, the board has earned a reputation as a centre of excellence in analyzing and resolving military grievances and has developed a substantial expertise on a variety of subjects relating to the administration of the affairs of the Canadian Forces. Apart from dealing with individual grievances, our work enables us to identify trends and areas of dissatisfaction, which we regularly share with the senior leadership of the Canadian Forces.
The board is mandated to review the grievances referred to it under the National Defence Act and the Queen's Orders and Regulations for the Canadian Forces. Under the regulations, four types of grievances must be referred to the board, which represents some 40% of the total that reach the final level of the grievance process. Other grievances can also be referred to the board on a discretionary basis.
Upon completing its review of a grievance, the board simultaneously submits its findings and recommendations to the grievor and to the Chief of the Defence Staff who is the final decision maker. The Chief of the Defence Staff is not bound by the board's findings and recommendations, but must provide reasons, in writing, should he choose not to act on them.
I am pleased to note that Bill C-41 includes a provision which would replace the board's current name with "Military Grievances External Review Committee". This may appear a minor matter, but it is in fact an important change that has long been sought by the board.
The board feels that its current name does not reflect its external role and that it has led to misunderstandings by giving the impression that the board is internal to the Department of National Defence and the Canadian Forces. The resulting confusion and complications have often been counter-productive.
This name change will lead to a better understanding of the specific and unique role for which the board was created. It will also underline its institutional independence while clarifying its mandate.
Also, as Bill C-41 is intended to be the legislative response to the report submitted by the late Chief Justice Antonio Lamer on military justice, I would like to reaffirm the board's support of the 18 recommendations related to the grievance process that are included in this report.
Several of these recommendations have already been implemented and others are contained in Bill C-41. Three recommendations, however, which specifically relate to the board and which were intended to facilitate its work, do not appear in the bill.
One of these recommendations proposes that board members be permitted to complete their caseload after the expiration of their term. A second would provide the board with a subpoena power, while the third calls for the alignment of the board's annual report with the fiscal year rather than the calendar year. To give effect to these recommendations, legislative amendments to the National Defence Act will be required.
Beyond these 18 recommendations, Chief Justice Lamer also pointed to other difficulties when he noted that, and I quote, "... the grievance process continues to suffer from unacceptable delays, it is overly bureaucratic and continues to lack transparency." The board shares the concerns of Chief Justice Lamer.
For this reason, on the issue of timeliness, the board has worked diligently over the years to increase its efficiency and has managed to reduce its file review to an average of 90 days. It has also been able to eliminate its backlog and to reduce its inventory of grievances, all this while ensuring that the quality of its work remains at a very high standard.
As a final point, I would like to return to the fact that only certain types of grievances are sent to the board for review. The National Defence Act places no restrictions on referrals to the board; however its implementing regulations limit our review to only four types of grievances.
Because of this, the majority of Canadian Forces members whose grievances reach the final level do not benefit from an external and independent review of their grievance by the board.
In examining only a fraction of the unresolved grievances at the final level, the board is of the view that it is not being used to its full potential. We believe that every Canadian Forces member should, at the final level, have their unresolved grievance reviewed by the board, regardless of the subject matter. This is a question of fairness and transparency, which were concerns raised by Chief Justice Lamer in his report.
On this subject, I would like to express the board's satisfaction with the introduction, on January 1, of an innovative pilot project, whereby the Canadian Forces have begun referring to the board all unresolved grievances that reach the final authority level.
Although this is a pilot project and these additional files are being referred to the board pursuant to the discretionary power found in the regulations, the board firmly believes in the benefits of such a model. By having all unresolved grievances reviewed by the board, members of the Canadian Forces and the Chief of the Defence Staff benefit from an independent and expert review. This optimizes the board's contribution to the grievance process.
The board is optimistic and hopes that this new model, if it performs as well as expected, will be adopted and implemented. Amendments to the National Defence Act and its regulations may be required for full implementation.
Mr. Chairman, in conclusion, the board welcomes the name change proposed by the bill and is encouraged by the recent initiatives put forward by the Canadian Forces regarding a new model for referring grievances. It remains resolved to maximize its contribution to the military grievance process.
I thank you for inviting me to speak here today. I would be pleased at this time to answer your questions.
3:40 p.m.
Conservative
The Chair Conservative Maxime Bernier
Thank you very much, Mr. Chairperson of the Canadian Forces Grievance Board.
I'll now give the floor to Mr. Leblanc, who has seven minutes.
3:40 p.m.
Liberal
Dominic LeBlanc Liberal Beauséjour, NB
Thank you, Mr. Chairman.
I have a few quite simple questions. Then Mr. Dryden will continue, if we have any time.
Mr. Hamel, thank you for your presentation. As you said, it was an introduction to your quasi-judicial institution. That overview was frankly very important for us. In any case, I learned a great deal.
Ms. Maynard, thank you as well for being here.
You targeted 18 recommendations made by former Chief Justice Lamer. Three of them, in your opinion, aren't included in Bill C-41. Did someone explain to you, or have you understood why they aren't included in it? Why the reluctance to include them? We support the bill, but we hope it will resolve a series of legal issues that moreover have been dragging on for a very long time. It would be unfortunate to miss out on three recommendations or three improvements to the bill.
3:40 p.m.
Chairperson, Canadian Forces Grievance Board
Thank you for your question.
The board's position on the 18 recommendations has never changed since the Lamer Report was tabled. One of my obligations as agency head is to provide support, or not to provide support, when those recommendations concern the board's work. The board's position on the recommendations concerning the board has never changed, and we have provided the appropriate authorities with the board's support or position on those recommendations.
3:40 p.m.
Chairperson, Canadian Forces Grievance Board
We support them all, more specifically those directly concerning the board.
Recommendation 85, which would enable members to complete their caseloads if their terms are not renewed, is outstanding. A number of other administrative tribunals have a similar clause or provision.
One of the board's obligations is to act quickly. As you'll understand, as each of the board members handling a specific case is independent, if a case had to be reassigned to someone else, the review of that case would start over, or the newly assigned member would have to start that review over from scratch. That would therefore compromise the quick handling of the case, and that would consequently increase the time it took to render a decision. So we believe this is very important.
As for Recommendation 86, which concerns the annual report, once again, we are living in an era of convergence and process integration. Federal organizations increasingly have to integrate their business plans and human resource plans. Most of those plans are aligned with the fiscal year. By law, the board reports on the basis of the calendar year, as a result of which you have to read two of the board's annual reports in order to get an overall and integrated idea. We think this is a natural alignment that changes no aspect of the board's mandate, but that would promote clarity and give all those who are interested in what the board does an immediate and unidirectional idea of the board's business.
As for Recommendation 87, which concerns the subpoena power, the act, as I mentioned, provides for a duty to act quickly and a duty of non-formality. That means that the committee has a certain power. I understand that, by law, National Defence must provide us with all the information it controls where a grievance has been filed. We're not talking about that here; instead we're talking about the issue of information where the Canadian Forces do not control the information.
The board actually has two powers, the first being the power to request. Where a request is denied, it has no other power but to go directly to a hearing. Not only does that compromise the speed with which a case is handled, because it is much more complicated to hold a hearing than to subpoena someone to file a document, but also, on the scale of available measures, we only have two choices; we request or we go to a hearing.
I want to point out that, on three or four occasions this past year, we have virtually had to hold a hearing to obtain information that was not necessarily controlled by the Canadian Forces but that the board needed.
The board perceives this as an intermediate tool on a graduated scale of its powers to facilitate its work and cases.
These three recommendations change nothing in its mandate.
I hope I answered the question, Mr. Chairman.
3:45 p.m.
Liberal
Dominic LeBlanc Liberal Beauséjour, NB
Very well; thank you very much.
Mr. Dryden, do you want to continue?
3:45 p.m.
Conservative
The Chair Conservative Maxime Bernier
Thank you.
Now I give Mr. Bachand the floor for seven minutes.
3:45 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
Thank you, Mr. Chairman.
Welcome, Mr. Hamel and Ms. Maynard.
Mr. Hamel, in your message, you say that, as a result of your distinct role, the Canadian Forces Grievance Board strengthens members' trust in the Canadian Forces' grievance process and enhances its fairness
I come from a union background. The procedure on the civilian side, in the health field where I come from, for example, is really different from yours.
First of all, you have no umpire. The top level of power, that of the commander. If things don't work out at that level, you go to the ultimate power, the Chief of the Defence Staff.
Are there only those two levels?
3:45 p.m.
Chairperson, Canadian Forces Grievance Board
Thank you for your question.
Mr. Chairman, the process naturally does not come under my responsibility, but we have an in-depth knowledge of it by default. So it's a formal two-level process, which does not exclude informal measures. However, when a grievance filing is formalized, normally—you're right—there is an initial authority that is usually the one that has the power to decide the issue. When the complainant receives the decision from that primary authority and is dissatisfied with the response or the proposed solution, he can ask that his case be reviewed by the Chief of the Defence Staff. The matter is referred to him as the authority of last resort, that is the authority that will issue a final and binding decision. Beyond that, only a judicial review in Federal Court can be conducted with respect to the grievance, but not on the merits of the case.
There are indeed two decision-making levels, and at the same time there are all kinds of ways and means to resolve the dispute informally.
3:50 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
The criticism I most often hear, Mr. Hamel, stems from the fact that the complainant must appear before the person against whom he is filing a grievance. You call it the "initial authority", but does the complainant have to appear before the commanding officer?
3:50 p.m.
Chairperson, Canadian Forces Grievance Board
Mr. Chairman, exchanges regarding the grievance process are made in writing. This is an arbitration process, if you will, in the context of which exchanges are made in writing. The board has the power to hold hearings and to ask people to appear before it. Apart from that, submissions are made in writing.
As for the initial authority, it is hard to say what rank that person will have. It has to be at least the individual's commander or supervisor or the person who can deal with the issue. It can't necessarily be concluded that it's always the commander. It may be him, but it may also be a person who is able to provide a solution to the complaint.
3:50 p.m.
Caroline Maynard Director of Operations and General Counsel, Canadian Forces Grievance Board
May I make a comment? The commander or the person who makes the decision, the initial authority, can never be the person against whom the grievance is directed. So if the commander has made a decision and that person complains about it, that person has to go through the commander to say that he or she wants to file a grievance, but the commander may not act as the initial authority.
3:50 p.m.
Director of Operations and General Counsel, Canadian Forces Grievance Board
The commander forwards the grievance to the next authority, but remains informed. As a result of the chain of command in the military hierarchy, it is very important that the commander be aware of the fact that the person disagrees with him. That also affords the complainant and the commander the opportunity to resolve the issue informally if they can. Otherwise, it has to be handled by someone other than the commander.
3:50 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
That may be the greatest criticism I have to make: it's the chain of command that ultimately decides. There aren't a lot of appellate bodies, and they all consist of military members. I often hear it said that senior officers tend to respect first-level decisions, whereas that is not the case in the public sector. There really is an independent umpire and an independent committee.
I haven't yet asked whether complainants can be assisted. Can they be assisted by someone who can help them in their efforts?
3:50 p.m.
Director of Operations and General Counsel, Canadian Forces Grievance Board
Yes, they can request an assistant—
3:50 p.m.
Director of Operations and General Counsel, Canadian Forces Grievance Board
Not legal, no.
3:50 p.m.
Director of Operations and General Counsel, Canadian Forces Grievance Board
That's because lawyers in the Canadian Forces are military lawyers and they advise the chain of command.
3:50 p.m.
Bloc
Claude Bachand Bloc Saint-Jean, QC
So they may be assisted, for example, by a lawyer, or rather a military lawyer.
3:50 p.m.
Director of Operations and General Counsel, Canadian Forces Grievance Board
No, civilian: they may be assisted by a civilian lawyer.
