National Defence Committee on Feb. 25th, 2013

[The Chair, Conservative, James Bezan]

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

At the risk of wearing out yet another microphone, I'll add my further comments.

I thank Mr. McKay for his support.

Once again, Mr. Chair and colleagues across the way, the notion there's a problem with the grievance system didn't fall out of the sky. The former Chief Justice of the Supreme Court of Canada was given the task 10 years ago in 2003 to look into these matters, and he had a recommendation, number 74:

I recommend that going forward, there be a time limit of 12 months for a decision respecting a grievance from the date that a grievance is submitted to a commanding officer to the date of a decision by the Chief of Defence Staff or his delegate (under my proposed modified grievance system). This 12 month time limit would apply to all grievances, excepting those that must be personally adjudicated by the Chief of Defence Staff because they fall within the guidelines to be established by the Chief of Defence Staff.

This hasn't happened either.

If the one year time limit is not met, subject to the exception for grievances that the Chief of Defence Staff must personally adjudicate, a grievor should be entitled to apply to the Federal Court for such relief as that court may deem appropriate.

The exact words we're using here.

The grievor should also be entitled to his/her costs on a solicitor client basis, regardless of the outcome of the case.

Why would Chief Justice Lamer put that extraordinary remedy there, that particular part of which has been ruled out of order because of the need for a royal recommendation?

Okay. We accept that. If a royal recommendation is not forthcoming, it's not forthcoming. But why did Chief Justice Lamer put that in? You don't get your costs on a solicitor client basis unless you shouldn't have been in court in the first place, and the judge decides you shouldn't have to be there because you should have your matter decided.

Chief Justice Lamer saw that the system was so egregious to grievers who were trying to get their thing solved that he wanted to have this extraordinary remedy there.

Yes, there has been progress. Why? Because it's been so bloody embarrassing to the government and so necessary to try to come to a solution that efforts have been made and enough public and private complaints have been made about it, enough awareness of the morale problems caused to the ordinary enlisted men and women who try to serve this country to the best of their ability with bravery and sacrifice and all the things we're so proud of, that these people deserve, Chief Justice Lamer said, to have their grievances resolved in a reasonable period of time, which he said was 12 months.

If we can't put that into legislation and say that's a reasonable expectation for the men and women who join our forces, who serve their country, who risk their lives, who do all the things we ask of them, and they are put in a justice system that we have heard is for good reasons harsher than the civilian justice system, and we have all those legal parameters around them to control them, to discipline them, to make a cohesive force so they will do the job we ask of them, surely there's another side to this.

Surely there has to be a bargain here of some kind, a social bargain, a responsibility that okay, we're going to do this to you, we're going to expect you to obey orders without question, do the job we ask you to do, risk your lives, take it on the chin and do all this, but if you have a grievance, we're going to resolve it in 12 months one way or the other. You're not going to win them all. You might not like the result, but we'll have a result for you in 12 months. If we don't, you can knock on the door of a judge of the Federal Court, and he can make whatever order is deemed appropriate.

They don't make orders willy-nilly. They are not going to decide the grievance. They are going to make an order that it be dealt with. They are going to ask questions. And maybe the mere fact that this authority is here will speed up some matters that might be proceeding a little less quickly than they should.

It's not necessarily because matters are so complex they can't be dealt with in a year. We have our limitations here. You have to lay a charge within six months on a summary trial, and you have to be over with it in 12 months. These are hard numbers.

What's wrong with a hard number on a grievance? If there's a problem, then a judge is going to make an appropriate order. Go to the court. Convince the court that this is so complex it couldn't be dealt with within a year. But don't go to court and say, well, it was on the back burner along with 50 other recommendations because the guy who was supposed to deal with it had an accident and we didn't get around to replacing him. That's not a good reason.

If we're going to be taking this grievance procedure seriously and we're going to follow Mr. Justice Lamer's recommendation, which was made some many years ago now.... Let's assume that it might have caused some hardship five or six years ago. Whatever the circumstances were then, they're much better now. We're agreeing that some progress has been made. I don't know where we are; we haven't received any numbers. We're hearing vague generalities from the other side.

Justice Lamer could say when he made his report that 12 months was reasonable and facts should be put into law. And to the point that failure to deal with it would give an individual the right to go to Federal Court and get the military to pay for his lawyer, that's what it says. Getting your costs on a solicitor-client basis means that you hire a lawyer, go to court, and you will get an award from the judge that says “he shall”. That's what the recommendation was: the griever should be entitled to his cost on a solicitor-client basis regardless of the outcome of the case.

That was a pretty strong recommendation from Chief Justice Lamer, who wanted to ensure the military was going to take this process seriously. The hope would be that no one would ever go to court because that prohibition and that remedy would be enough to ensure grievances would be dealt with in a timely fashion. If that meant hiring more people or assigning more people to the role of resolving grievances, so be it.

What Chief Justice Lamer was saying was to put the resources in place: treat these things seriously; don't let them languish, and resolve them. That's all he was saying. We're not saying resolve them in favour of the griever. We're not saying that the grievers are always right because obviously they're not.

A grievance is simply a disagreement about whether you're entitled to a certain benefit or whether a certain rule applies or doesn't apply to you. These are sometimes complex matters, but that's what the grievance process is for. That's what the people are there to deal with. That's why they're assigned. That's why they have legal advice. That's why they have people with experience who can deal with these things. And there's no reason they can't be dealt with. Justice Lamer certainly felt there was no reason that they couldn't be dealt with within 12 months. He not only felt there was no reason, but that in fact it was an imperative for the purposes of maintaining morale and doing justice to the claims of individuals who have no right of representation.

You know, we put people in the military. People join the military. We had a dean of a law school who said you go into the military and you sign away certain rights. He went so far as to suggest that you sign away your charter rights. I don't think you do that. I don't think anybody signs away their charter rights in this country. I disagree with him on that.

One of the things you don't have access to in the military is a union. I practised law for 30 years, and I represented a lot of unions. I know how it works. You have the collective agreement. You have the right to a grievance process. It's in the control of the parties to decide who's going to be on an arbitration board. If you win your case, you can go to court and get it enforced if the employer doesn't pay. There is a process that ensures you can get your grievance heard and that you're going to get paid.

Now, we've just decided that we're not going to send a clear message that the CDS doesn't have the final authority. We didn't do that. We know we have a problem with that. We haven't solved it. We know we have a problem with grievances not being heard. We've had it since Justice Lamer made his recommendation. Can't we do something? Can we say to the men and women in uniform who work in the forces that if you have a grievance it's going to be resolved in 12 months, and if it's not, you can call us out on it?

It's essentially saying you have a right that it be resolved in 12 months. You don't have a union. You don't have the right to have a union. You can't collectively bargain. You can't go on strike. You can't withdraw your services. You have to obey your senior officers and all of that. But if you have a grievance, we're going to deal with it in 12 months. If we don't, then you can go to court and the judge will decide whether we're being reasonable and he can make whatever order is appropriate.

I don't think that's too much to ask for the people in the forces who are giving up the right to bargain collectively and do all those things that other citizens have the right to do.

[The Chair, Conservative, James Bezan]

Other comments? Seeing none, we're going to vote on NDP-12, reference number 5996242.

(Amendment negatived [See Minutes of Proceedings])

We move on to clause 10, which is the addition of a title in the bill, Military Grievances External Review Committee.

Are there any comments on that? I see none.

It's just the title.

[Jack Harris, NDP, St. John's East, NL]

I do have some comments on that. I'm going to vote in favour of it because I do believe we should have an external review committee. But I have some serious misgivings about whether or not we're creating one. I don't know how favourably my amendments are going to be considered. I have a feeling they're not going to be considered very favourably.

We've got provision here for serving members of the Canadian Forces to be part of the grievances committee, but that doesn't strike me as an external review committee. We're changing the name, and one of the recommendations in relation to this had to do with the creation of an external review committee, and we're giving it that name. We're giving it that name here but are we creating an external review committee or are we naming the existing committee that has provision for active CF members being part of that committee—contrary to the recommendation of LeSage and others, including the current chair of the grievance board—to call it the external review committee?

[The Chair, Conservative, James Bezan]

I think you're getting ahead of yourself here.

[Jack Harris, NDP, St. John's East, NL]

I'm getting ahead of myself but we're changing the name to external review committee, but we're not creating one. I'll vote in favour of it though, Mr. Chair, because I believe we should have one.

[The Chair, Conservative, James Bezan]

Okay. Shall clause 10 carry?

(Clause 10 agreed to)

On clause 11. We have a few amendments on clause 11.

The first one up is NDP-13, reference number 5993939.

Mr. Harris, you can move it to the floor, please.

[Jack Harris, NDP, St. John's East, NL]

This is a matter that I think is important to the operation of the committee. It ought not to be controversial, frankly. I really don't know why it's being resisted. We had some pretty compelling testimony from the chair of the grievances committee.

This is designed essentially to permit a member of the grievances committee...which now, as a result of the last section, is called the Military Grievances External Review Committee, or the grievances committee in short form.

Here's what we say:

if a matter has been referred to the Grievances Committee and the term of appointment of a member who has been participating in the consideration of the matter expires, or the member resigns, before the Grievances Committee concludes its consideration of the matter or gives a decision, the member, solely for the purpose of the Grievances Committee's concluding its consideration of the matter...shall continue to be considered a member of the Grievances Committee, except if removed for cause.

The last four or five words were prompted by some penetrating comments by Mr. Hawn during the last round of this consideration. He expressed some dissatisfaction with the wording we had chosen.

What if some member had been removed for cause, for doing something outrageous apparently, or whatever one might do to get removed for cause from a grievance board? I guess people can do scandalous things and be removed for cause.

If you look at the last committee hearings, the discussion was that we were not really opposed, but we didn't like the wording so much. That was two years ago, in February or March of 2010. There have been two years to work on good wording. I haven't seen that come forth from the other side, but I'm forgiving. I don't blame Mr. Hawn for that. He's not the government. But the argument was that there wasn't anything particularly wrong with it except that we didn't like the wording. So we have gone out of our way to deal with the concern that was raised and to try to craft something that fits the committee.

I don't know if we had that testimony the last time, but we certainly had it this time in spades from Mr. Hamel, who said that when it comes to the end of the term, he has two or three people who can't do anything. He can't assign them a case. He has to pay them. Their workload goes down and down, and until somebody else is appointed, he can't give anyone a job.

There's another thing that is important, which we didn't get into at the committee hearing because there wasn't time. There is a strong principle of administrative law that says the only people who can participate in the decision about a case are those who have actually heard the evidence. If Mr. Chisu, Mr. Hawn, and I were the three adjudicators, we would hear all the evidence. It would go on for a year. It can do that under this provision, without a 12-month requirement. If it goes on for a year, we have a few days here and we go on, back and forth. Then we would have to write a decision. But if Mr. Chisu's term of office expires, we're back to square one, because Mr. Hawn and I can't make the decision in his absence even though we all heard the evidence. Mr. Chisu can't participate in the decision after his term expires, and we're back to square one. That is a principle of administrative law.

I have practised a fair bit of it myself. I'm not testifying as an expert, but I'm telling you that's a common principle.

So this actually ought not to be controversial. I would say not all, obviously, but most boards and tribunals across the country have provisions like this. The Labour Relations Act in Newfoundland, for example, with which I am very familiar, has one. In the Judges Act, it's pretty clear that a judge who sits and hears a case, even though he's retired because he's of mandatory retirement age, can continue as a judge for the purposes of rendering a decision.

We're just trying to do something that is efficient, in terms of saving money and ensuring that the people who are appointed to do a job and are paid to do a job are actually able to do the job up until the end of their term, and if there is a need for a person to make a decision, solely for the purpose of concluding the consideration and giving a decision, the person continue to be considered a member of the grievances committee, unless removed for cause.

I suspect it's a Conservative principle that people who are appointed to a job should be used, and not be idle for a while, given only a three-quarter load because they can't be assigned any more cases. That doesn't seem to jibe with common sense or the kinds of principles that would be espoused, in terms of efficiency of government or tribunals.

I'm only saying this because I haven't got a sense one way or the other from the other side yet whether they think this is acceptable. But I submit it's a quite reasonable and practical proposal that accords with common practice across the country.

[The Chair, Conservative, James Bezan]

Mr. Alexander.

[Chris Alexander, Conservative, Ajax—Pickering, ON]

Thanks, Chair.

We are not persuaded by those arguments. The grievances committee should be able to manage their affairs with the number of members they have, with the workload they have, to allow for appropriate transitions after a four-year term. In fact, they have managed their affairs—I repeat for everyone's benefit—recently under the current law, with the stipulation that service not go beyond four years, in a way that has come close to eliminating the backup, certainly reduced it dramatically.

Moreover, there is provision now for new members to be paired with outgoing members to ensure the transition, and there's no reason why that kind of pairing could not take place for cases that extend beyond the term of a member. That is indeed the case in a wide variety of independent tribunals, at both the federal and the provincial levels. We see no reason to change that rule in this particular case. Therefore, I will preview our position on the next two amendments, which is that we will also oppose them, because we do not think there should be prejudice against serving or former members of the Canadian Forces with regard to their potential membership in a grievances committee. There are close to 100,000 serving regular force/reserve force members. To think that none of them is qualified enough to be impartial on a grievances committee strikes us as odd, as it does in the case of the over-600,000 veterans of the Canadian Forces.

[The Chair, Conservative, James Bezan]

Don't get ahead of yourself. We've got to deal with those amendments.

I've got Mr. McKay, and then Mr. Harris.

[John McKay, Liberal, Scarborough—Guildwood, ON]

If the grievance board was handling it so well, why would Mr. Hamel come before us and say he needs this amendment? It's obviously just an administrative housekeeping type of amendment to cope with those, hopefully, very rare cases in which a set of circumstances is such that the hearing is not done before the completion of somebody's term. The rationale that the government puts forward is nonsense. It's been asked for by the grievance board, and this is a great opportunity to fill in a legislative gap that is very similar to what you find in civilian situations. All courts, even if they have mandatory retirement ages, have the ability to let a supernumerary sit past the age of retirement, in the event that a case has not been completed and to participate in the adjudication and in the writing of the reasons. So it makes perfectly good sense to me.

[The Chair, Conservative, James Bezan]

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

Thank you, Chair.

Once again, I'm not trying to rub it in here; I'm trying to inform the opposite side, once again, that the former Chief Justice Antonio Lamer, in making his recommendations to the government, said in recommendation number 85:

I recommend that the National Defence Act be amended to provide authority for Canadian Forces Grievance Board members whose terms have expired to complete their caseloads.

Why did he do that? Because it's common sense. It's common to judicial boards, tribunals, judges, and courts across the country. It's efficient. It's a matter of justice to the grievers not to have their cases thrown away.

We all listened to Bruno Hamel, on February 6 of this year, when he said:

...last fall, I was unable to assign grievances to three experienced board members during the last three months of their tenure, despite having files that needed to be reviewed.

He went on to say:

It wouldn't be fair for a griever, a Canadian Forces member, to have a case assigned to a board member...and then suddenly this judge is no longer a judge and the case has not been decided.

You have to reassign the case and start from scratch. We're talking about fairness to the grievers who we believe should have justice.

Even though you didn't agree to the 12 months, Mr. Justice Lamer thought that we should. Now you're saying we're going to put an additional barrier in the way of potential delay. As Mr. Hamel, the chair of the grievance board, said, we have three people, but no new cases for three months when they're available, and files that need to be reviewed. I don't get it.

You hold up Chief Justice Lamer as a paragon of the law. This is a strictly legal matter. It's not that it has practical consequences. There is no ideology here, folks. Nothing bad is going to happen. There is no ideology. This is practical administration of justice in a fair way for individuals in the Canadian Forces.

I don't know what's preventing you from doing something that can provide justice to grievers by doing something that's done in so many boards and tribunals across the country. I can't understand it.

[The Chair, Conservative, James Bezan]

Are there other comments?

Seeing none, I'll call the question on the amendment NDP-13, reference number 5993939.

(Amendment negatived [See Minutes of Proceedings])

We have amendment NDP-14, reference number 5996306.

Would you care to move that to the floor, Mr. Harris?

[Jack Harris, NDP, St. John's East, NL]

We did have a number of amendments that have been consolidated now. I'm assuming we're allowed to do that, Chair. We have two or three proposed subsections to proposed section 29.16 at the same time.

The basic provision here is proposed subsection 29.16 (2.1), “No officer or non-commissioned member may be appointed as a member of the Grievances Committee”.

I think we have to remember that what's called the grievances committee is actually the external review committee. If we go back to subclause 2(6) of the bill, in the definitions section, proposed subsection 2(1) reads as follows:

“Grievances Committee” means the Military Grievances External Review Committee continued by subsection 29.16(1)

Grievances committee, in this context, means the Military Grievances External Review Committee. We're saying that if it's an external review committee, it ought to be external to the forces.

Justice LeSage's recommendation 49 reads as follows:

Legislation or regulation ought to provide that active CF members are not eligible to be members of the Grievance Board/Military Grievances External Review Committee. I also recommend civilians without military backgrounds be appointed to the Grievance Board/Military Grievances External Review Committee.

That's there to provide an external review, to provide an independent decision-maker. We're not talking here about military matters that have to be dealt with by active military people. We're talking about matters that would ordinarily, in civilian life, come before an arbitration board to be settled, if you're mostly complaining about benefits you're not getting, or you're complaining about your treatment by a superior. These things, because they're mostly employment-related, ought to be dealt with by people who are independent and external to the military.

We don't think people who have military backgrounds should be excluded from these boards, but if you're actively in the military, you have to be responsible to a chain of command. Maybe you can be seconded, but that doesn't mean you're outside of the chain of command. You're still inside the Canadian chain of command. You're still expecting promotion. You're still part of the group. You're not external to the military, in other words.

We have both Justice Patrick LeSage's recommendation 49 and the comments of Bruno Hamel, in his testimony on February 6.

He said:

One of the fundamental reasons for the creation of the board was the provision of an external review to the Chief of the Defence Staff and to the Canadian Forces members who submit a grievance. Should a serving Canadian Forces member be appointed as a board member, the board's independence from the chain of command would be in jeopardy. In his report, Justice LeSage recommended that serving Canadian Forces members not be appointed as board members. I agree.

As you know, I could go on.

[The Chair, Conservative, James Bezan]

Do you have any more spare mikes?

[Some hon. members]

Oh, oh!

[Jack Harris, NDP, St. John's East, NL]

I'm not sure I should wear out another mike.

I'm only kidding.

Clearly this is a fundamental principle that has been stated in this committee before. We've had high authority for it. It's a reasonable provision. I haven't heard the counter-arguments.

We do hear that people should have some knowledge of the military, but that doesn't have to be current knowledge. It doesn't need to be somebody who's in the chain of command going over to the grievances board to introduce whatever thoughts or feelings or views that person has as a serving member of the military, reporting in the chain of command as somebody else, or going back to report to the same people they reported to before because they're seconded.

That's not right. It's not independent. It's not external. It's not necessary.

[The Chair, Conservative, James Bezan]

Okay.

Are there other comments on the amendment? Seeing none, all those in favour of amendment NDP-14?

(Amendment negatived [See Minutes of Proceedings])

We're now on amendment NDP-15, reference number 5996312.

Mr. Harris, do you wish to move that to the floor, please? You're amending clause 11 by replacing lines 21 to 28 on page 6.

[Jack Harris, NDP, St. John's East, NL]

Okay. We've just received some comments from the drafters. They suggest that a different wording needs to be used here because the reference to the subsections isn't correct. It would now read that Bill C-15 in clause 11 be amended by adding a line after line 20 on page 6 with the following.... Then the second one would be renumbered from 2.1 to 2.01. Given that, Chair, can we stand this one down and deal with it? It doesn't look like we're going to finish today, but if we can stand down, I'd just as soon have a proper amendment before the committee.

[The Chair, Conservative, James Bezan]

Okay. I'll tell you what. We will sit NDP-15 and we will stand clause 11 and come back to that one at the end of our consideration.

Is that agreed?

[Some hon. members]

Agreed.

[The Chair, Conservative, James Bezan]

(Clause 11 allowed to stand)

[The Chair, Conservative, James Bezan]

We're moving on to clause 12 on page 7 of Bill C-15. Are there comments? No amendments have been tabled.