Evidence of meeting #67 for National Defence in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was grievance.
A recording is available from Parliament.
4 p.m.
NDP
Jack Harris NDP St. John's East, NL
— page 5, replacing line 3. This involves the insertion of a few words. We have reorganized it slightly by saying the Chief of the Defence Staff is the final authority in the grievance process and shall:
(a) decide all matters relating to a grievance, including financial matters; and
(b) deal with all matters as informally and expeditiously as the circumstances and the considerations of fairness permit.
It's essentially putting in an extra possibility, an extra qualification to the decision-making, and saying he should have the power to include financial matters.
Mr. Chair, I will speak in favour of that.
I think we've been through this before. We've had representations to the committee going back to the consideration of Bill C-41. We had multiple considerations. We've had complaints made to the grievances committee. We've had a series of complaints to the ombudsman, who has been here before us. We've had the grievances committee chair speak to this. We've had publicity nationally, particularly recently, on the home equity assistance program, where the CDS ruled favourably for a particular grievance but no financial award has taken place.
We've also had an attempt to resolve the matter by creating an order in council—that was done last June, although without any publicity until recently—that allows for ex gratia payments. We've had some comment on that by Mr. Hamel, from the grievance board. He explained, in a rather convoluted and complicated way, that ex gratia payments apply if you're not entitled to something, but if you are entitled to it, they don't, and you can't change the rules to give an ex gratia payment, or some such interpretation as that. That seems somewhat complicated.
It appears the ex gratia payment order that was passed last June by cabinet has not resulted in anybody receiving any money and doesn't seem to solve the problem. The simple solution is an amendment to this legislation that establishes that the Chief of the Defence Staff can make a decision in terms of financial matters.
Again, we're under the circumstances where a huge number, if not the majority, of grievances that go before the board are about matters of benefits. Are you entitled to an allowance for moving? Are you entitled to an extra holiday? Are you entitled to payment for work you did that was over and above the expectations on a particular occasion?
All of these things are not necessarily horribly complicated. What happens, though—as the evidence we heard the last time showed, and Mr. Hawn will remember—is that if a grievance is approved, then it goes to the lawyers within the Department of Defence to decide whether a person has a claim against the crown in law. That's a very different set of circumstances than having a grievance whereby someone says, “Yes, you're entitled to an extra $1500”, or “Under travel policy xyz, you're entitled to that $800 as part of your moving expenses.”
Why don't we want the Chief of the Defence Staff to have the final authority? As my colleague Mr. Alexander so adamantly said, this is the intention of the act. The final authority has to be the Chief of the Defence Staff. Well, if that's true, let's give him the authority. Let's say he can order that somebody is entitled to receive the $2500 he won his grievance on, and then somebody writes a cheque.
We're talking about the Chief of the Defence Staff here. We're not talking about a clerk in a remote location having the keys to the treasury. We're talking about the Chief of the Defence Staff. If a grievance proceeds after significant consideration all the way through the grievance procedure, some of which takes a long period of time and involves many reviews, in some cases, for policy considerations, and it ends up on the desk of the Chief of the Defence Staff, surely the Chief of the Defence Staff can be allowed to decide whether a soldier who should be receiving a benefit is going to get it or not.
We had all kinds of arguments last time about other...in fact it was ruled out of order.
It's not out of order now, so members of the committee can feel free to give the Chief of the Defence Staff authority in this matter. I urge them. We hear all this talk about supporting our troops and supporting our soldiers, but when we've got people complaining about such simple matters that have to do with their personal financial circumstances, their family circumstances, morale is at risk. We've got people complaining all the time about the length of the grievance procedure, which is one thing. Some moves have been made to try to fix that. Fair enough, that's been done to some extent but not to everybody's satisfaction.
The issue of getting paid when you win your grievance should be a simple matter. I think every other organization of the country manages.... If they have a collective agreement for example, and they win a grievance, they get their money. If they have a system that isn't unionized, people don't have the right to have a union, a collective bargaining arrangement.
But they have a system that's supposed to provide them with an adjudication of any grievances that they have and it should provide them with a cheque if they win. Whether it's $50 or $500 or $2500, and most of these things involve a small amount of money, in terms of the satisfaction of the soldier who wins a grievance, and then is told they have to wait until some lawyer they don't necessarily have any contact with decides whether it's appropriate or whether they actually have a claim against the crown in law, which is not part of the grievance at all, the soldier shouldn't have to deal with it.
When I say soldier, I mean soldiers, and sailors, and airmen, and women and all of that. We're just using the generic here. This is unfair to the men and women who work for the Canadian Forces to be in a situation where they win a grievance and they don't get paid.
4:05 p.m.
Liberal
John McKay Liberal Scarborough—Guildwood, ON
I want to agree with the amendment, but I'm not convinced that it actually does what Mr. Harris would like it to do. It is a bizarre situation where the CDS can actually rule that soldier XYZ is entitled to money. So if I may direct a question to the officials, the question is: does Mr. Harris' amendment actually expand the authority of the CDS in any way?
If it does expand the authority of the CDS in any way to deal with this kind of grievance over what he's traditionally been doing, does it entail any capacity on the part of the CDS to actually settle the grievance then and there by writing a compensating cheque?
How would this amendment, if it were to succeed, actually obviate the Treasury Board guideline?
4:05 p.m.
Conservative
The Chair Conservative James Bezan
Okay. I want everyone to know that we're being joined again today by Colonel Gibson, Lieutenant-Colonel Dufour, and Lieutenant-Colonel Strickey from the JAG. They're here strictly from a technical standpoint to assist.
So can you make sure that your commentary is to the technical aspects, Colonel Gibson, as they relate to the question from Mr. McKay.
February 25th, 2013 / 4:05 p.m.
Colonel Michael R. Gibson Deputy Judge Advocate General of Military Justice, Office of the Judge Advocate General, Department of National Defence
Thank you, Mr. Chair. I would say two things. The first is that somewhat regrettably we're not the individuals who are best placed to actually speak to this particular issue because the policy responsibility with respect to this issue actually falls under the Vice Chief of the Defence Staff as opposed to the JAG. Secondly, as the DJAG Military Justice, I don't advise in this particular area. So I would just like to give that as a caveat. But a very short answer within the bounds of what I feel competent to give would be this. I think there would be concerns that the amendment would actually accomplish what it was intended to do in terms of providing the requisite financial authority and I think one would likely have to have regard to other acts as well, for example the Financial Administration Act. I think that's about the extent of what I can responsibly say to the question, Mr. Chair.
4:10 p.m.
Conservative
The Chair Conservative James Bezan
Thank you.
Are you done, Mr. McKay?
Okay I have Mr. Alexander and I'll come back to Mr. Harris.
4:10 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
Very briefly, Chair, we oppose the amendment. The financial authority of the CDS has been strengthened by order in council last June, and that is having an effect. The backlog in grievances is also being dealt with even before the further improvements provided for in Bill C-15 as unamended, come into force.
Finally, we're of the strong view that the best place to enhance financial authorities is not in the National Defence Act, it is in the Financial Administration Act, other acts of Parliament governing financial matters, and above all, in the policies and programs that are the province of the Treasury Board.
4:10 p.m.
NDP
Jack Harris NDP St. John's East, NL
Accepting Colonel Gibson's caveat on his views that this is not intended to amend the Financial Administration Act, what it is intended to do is to make it very clear that the decision as to whether or not a grievance is successful includes the financial determination.
If we do this that will be a clear signal to the authorities, whether they be within the Treasury Board or wherever, that this is intended to be carried out. It seems that we have trouble, and we've seen other examples of this. We've seen it in the case of strong recommendations made four or five years ago to try to ensure that individuals who are reservists who are subject to insurance policies receive the same benefits as regular force members in the case of dismemberment, or other particulars of the insurance policy. That seemed to take four, five, or six years to try to resolve. Then finally when political pressure mounted in the House of Commons, the Minister of Defence was essentially indicating this was a Treasury Board problem not a defence problem.
If we can solve the defence problem here by saying we want to make it clear: the Chief of the Defence Staff who has the final authority, and that's the clear intention of the act...that includes financial matters. So there ought not to be, and as Colonel Gibson says maybe another department in JAG doesn't advise it... if it's a clear direction in legislation that the CDS makes the final decision on financial matters, it's not a lawyer advising the CDS, it's not a lawyer in the justice department, it's not somebody other than the CDS who makes the decision. That's the importance of this here.
It may be that the ex gratia order in council can be used for the actual mechanism for granting the money. I didn't get that level of confidence from the Vice CDS when he was here talking about it. We didn't get any indication that it had even been used to pass out money. So the mechanism should be found. This may not be adequate to do all the steps, but certainly in terms of decision-making there's no other layer. There is no somebody in the justice department who has to approve the fact that this person won their grievance and they're entitled to the money. They are entitled to the money. Somebody then has to find a way to get it to them.
We're here on the committee. We're lay people when it comes to the bureaucracy and how it works. Things go on in the bureaucracy that I'm sure amaze everybody in this room, particularly those who have more familiarity with the bureaucracy than I have. We're here as makers of legislation on behalf of the people of Canada. It seems to me to be a simple matter that we can say the decision-making, including on financial matters, is going to be made at the end of the day by the Chief of the Defence Staff, and it's up to the bureaucracy to find a way to give effect to it.
I think that's the purpose of this amendment so that it's crystal clear that once the grievance is over and the Chief of the Defence Staff signs off on it that there's no other process, some mystery process, that decides whether you actually get paid. There may need to be a mechanism but we're not making mechanisms here we're passing legislation. So I think if we can make it crystal clear in this proposed amendment to clause 6 then the detail as to how that happens can and should follow. If it requires another order in council I think we can expect the government to follow through on it. If it requires some other mechanism I think we can expect, or should expect, and have the right to expect that's going to happen. It's less likely to happen if we don't take this step.
4:15 p.m.
Conservative
The Chair Conservative James Bezan
Thank you.
Are there other comments?
I'll just say that one of the reasons we decided, in C-41, that this amendment was inadmissible, was that since the clause deals with “all matters” with the Chief of the Defence Staff dealing with a grievance, that already included financial matters. They are already considered because financial matters are “all matters”.
Seeing no other comments, shall NDP-5, reference number 5944209, carry?
(Amendment negatived)
We're back to clause 6.
(Clause 6 agreed to on division)
(On Clause 7)
This is NDP-6, reference no. 5993813.
Mr. Harris, can you move that amendment?
4:15 p.m.
NDP
Jack Harris NDP St. John's East, NL
I'm looking at that. That's an amendment that's consequential to the amendment that was just defeated.
That being the case, sir, the consequential amendment would be withdrawn.
4:15 p.m.
Conservative
The Chair Conservative James Bezan
Okay. You're withdrawing it.
Are there any other comments on clause 7, page 5 of the bill?
(Clause 7 agreed to on division)
(On Clause 8)
You have an amendment, NDP-7. That's reference number 5996305.
Mr. Harris, can you please move your amendment to the floor?
This is clause 8 that we're considering.
4:15 p.m.
NDP
4:15 p.m.
Conservative
The Chair Conservative James Bezan
Then that takes us to NDP-8, which is reference number 5996083, from Mr. Harris.
Do you wish to move that one to the floor?
4:15 p.m.
NDP
Jack Harris NDP St. John's East, NL
That says, “provide, and make public without delay, reasons for his or her decision in respect”.
If we go to the section itself—I want to make sure I find the right line—line 26, on page 5—
4:15 p.m.
NDP
Jack Harris NDP St. John's East, NL
No, it's not.
The Chief of the Defence Staff, according to the amendment, is required to provide reasons for his decision with respect to the grievance if they don't act on the finding of the grievances committee. The intention would be to make the reason public, if the Chief of the Defence Staff were going against the decision with respect to the grievance or if the grievance was submitted by a military judge.
Again, this is to provide transparency. We did ask that the Chief of the Defence Staff not hear grievances by military judges. We lost that debate in this committee, but despite that we think there ought to be greater transparency. If a military judge is being denied a grievance, or if the chief of defence is ruling against a finding of the grievances committee, it ought to be a public thing as opposed to something that's done behind closed doors.
4:20 p.m.
Conservative
Chris Alexander Conservative Ajax—Pickering, ON
I have to disagree with both my colleagues opposite. There is an aspect of this proposed amendment as it is currently worded that is consequential on an amendment that was defeated earlier. The amendment reads, “if the Chief of the Defence Staff does not act on a finding or a recommendation of the Grievances Committee”. We have just agreed, and voted to recognize the fact, that the CDS is the final authority for a grievance—
4:20 p.m.
Conservative