Bill C-2 (39th Parliament, 1st Session) Committee on May 10th, 2006

[The Chair, Conservative, David Tilson]

You can do that, sir. I understand that we do have another delegation, which is supposed to end at 5:30. If you want to go beyond 5:30, we would have to have unanimous consent for that as well.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I know, Mr. Chairman, but the fact that we're running short of time is a problem for us. We have the rules that we set for ourselves. However, we also said that, with unanimous consent, we could...

[The Chair, Conservative, David Tilson]

I'm in the hands of the committee.

Do we have unanimous consent to go another round?

Monsieur Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

On a point of order, Mr. Chair, our constraints have nothing to do with the rules we've imposed. The fact is we have two rounds of witnesses we have to get through before votes tonight. That's the constraint we're faced with.

In order to satiate the committee's desire to hear more from Allan Cutler and to hear the other witnesses, I think our side would be willing to give unanimous consent, as long as there is consent that we will extend beyond 5:30 for as long as it takes to hear the other witness.

Is there consent for that as well?

[The Chair, Conservative, David Tilson]

That was my request. We've invited another delegation to come here. We're already ten minutes late. To be courteous to that group, I think we would have to go past 5:30. If you're all in agreement with that—

[James Moore, Conservative, Port Moody—Westwood—Port Coquitlam, BC]

Do we need another whole round? If Mr. Sauvageau wants five minutes, let's take five minutes.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Chairman, I especially wouldn't want to start a debate on this subject. However, unless we can call back certain witnesses...

[The Chair, Conservative, David Tilson]

Does Madam Guay have another five minutes?

[Some hon. members]

Agreed.

[The Chair, Conservative, David Tilson]

It is agreed.

Madam Guay, you are on the air for five minutes.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chairman.

It's hard to gain the floor here, Mr. Chairman. This is the first time I've seen these kinds of rules in the committee. There's not a lot of understanding or cooperation here. I hope the situation will improve with time.

Mr. Cutler, I want to ask you some technical questions that are fairly important for us and that we will have to consider.

First, in your brief, you referred to certain amendments. You didn't have the time to present them all to us. I would very much like you to send them to us so that we can examine them in depth and see what we could improve in the bill with amendments. You witnessed a situation that you had to disclose. So you went through all the stages in this process and you can help us improve the bill. Send us as much information as possible.

Second, you mentioned $20,000 in legal fees. That's not a small amount. I'd like you to explain to us why those fees can rise to $20,000.

Third, I'd like to hear your opinion on the $1,000 reward that would be given to anyone making a disclosure. We have doubts on that subject.

[Allan Cutler]

First off, in terms of the causes or the amendments I've proposed, I already gave them to the clerks, but I know the rules—that until it's in both official languages, it doesn't get handed out. That's why you didn't see it.

I'll do the $1,000 first, and then we can go back to the other one.

The $1,000 is not going to make or break anybody. It could be equivalent to a pat on the back and saying a thank you. The grief that a person undergoes in whistle-blowing is enormous, and it may be just a simple way of saying thanks. On the other hand, if it is removed from the bill, it really doesn't bother me on a personal level. I did not do anything for cash in any way, shape, or form. I wasn't looking for a reward, and I would think very few are actually looking for rewards.

The other question concerned lawyers. The figure I actually used was $30,000, and the reason I used $30,000—and the only reason I used $30,000—was that this bill had used $3,000. It was to create some balance with what departments can.... If there is a whistle-blower coming forward and accusing a manager, for example, the manager will be given a lawyer by the department—their own choice of lawyer, probably—with up to $25,000 paid. To say $3,000 versus $25,000 would not be fair. I just picked $30,000 as a balancing figure. It could be $25,000. You determine what you consider fair.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

All right. However, we know that employees are protected by their union in some cases. This one could do its share and pay a portion of the expenses of the person who acted as a whistleblower. I don't think that a person who makes a disclosure should be rewarded. That person does so because it's his or her duty to do so. That's part of the job. If that person witnesses questionable practices at his or her department, that person should not expect to be rewarded if he or she discloses them. I think we're sending the wrong signal to people when we tell them we're going to give them $1,000 if they make a disclosure. I believe that should be done professionally. It's simply part of their job to do that.

[The Chair, Conservative, David Tilson]

Do you have a point of clarification, Mr. Owen?

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

Mr. Cutler, while you're still here I would like to clarify what might have been a misunderstanding, with Mr. Poilievre's comment about the burden of proof and your recommendation that the burden of proof should reverse and not be with the whistle-blower, if there is a short time period that raises suspicion of a reprisal. The burden of proof still means 51 to 49; the burden still sits as it does, with the whistle-blower. So your recommendation still stands: even though it's on a balance of probabilities, that still means the burden is with you. So your point still is valid.

I just wanted that on the record, so we didn't think it wasn't necessarily.

[The Chair, Conservative, David Tilson]

Thank you, Mr. Owen.

I'm in the hands of the committee. People—Ms. Guay and others—are criticizing me for time, and people keep interrupting. But....

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Chair, I just wanted to add one point of clarification as well before this witness leaves, if I'm allowed to do so.

[The Chair, Conservative, David Tilson]

Okay. As long as you're prepared to sit past 5:30, it's up to you.

[Pat Martin, NDP, Winnipeg Centre, MB]

I'll be very brief.

Mr. Poilievre mentioned, I think, that the information in my questioning wasn't correct. I went over and checked with the lawyer and I'd like to qualify it somewhat. Just as a point of clarification, Bill C-2 will now read that

The Public Sector Integrity Commissioner shall refuse to disclose any record requested under this Act that [is]...obtained or created by him or her or on his or her behalf in the course of an investigation...

So any body of information that he has sought in conducting his investigation won't be disclosed under any kind of.... That's right.

That was the “veil of secrecy” that I was raising, and I stand by it. In the course of investigating what happened to a whistle-blower, they may create a room full of information that would not be subject to access to information requests.

[The Chair, Conservative, David Tilson]

We're here to hear witnesses.

Thank you very much, Mr. Cutler, for coming.

We'll recess—and I'm not kidding this time—for 30 seconds.

[The Chair, Conservative, David Tilson]

We'll reconvene.

We have—I hope I'm correct—three representatives from Export Development Canada. I have Rob Wright, president and chief executive officer; Jim McArdle, who is the senior vice-president of legal services and secretary; and Pierre Gignac, senior vice-president of insurance.

Mr. Wright, you can speak for a few moments. We're way behind schedule. I don't mean to cut you off; it's just to let you know. And it's not your fault; it's our fault. Proceed, please.

Welcome to the committee.

[Rob Wright, President and Chief Executive Officer, Export Development Canada]

Thank you, Mr. Chairman. We're pleased to be here with you and we thank you for this opportunity to attend such an important meeting.

You have introduced my colleagues.

We have a prepared statement, which is being circulated. I won't read it, in the interests of time.

Mr. Chairman, switching gears from whistle-blowing to access to information, we've highlighted I think some important background points in the statement that's being circulated. I just want to highlight three key points.

First, this bill will have a very important impact on EDC. We have never before been subject to the Access to Information Act, and it's a big and important change for us. I want to assure the committee that we are devoting the appropriate resources and planning and we will fully respect the letter and the spirit of that bill in the way we respond to requests for what we're about.

We've already started. We have voluntary disclosure of various summaries of transactions. We released 1,200 transactions in summary form last year. We release expenses and hospitality by our board of directors and myself twice a year. Doubtless that will come out more often under Access to Information.

We release voluntarily. The Auditor General of Canada is our auditor of record. We release her special examination of EDC and other audits, including our environmental programs, and we release a number of internal documents that we feel are of public interest.

All of that being said, I've worked in the Government of Canada for over 30 years and I've worked with the Access to Information, and there is no question that this bill will represent a major change in our approach to the way we do business and will result in a great deal of disclosure. That's a good thing and we're working very hard to be ready for it.

The second thing I thought I should do up front, Mr. Chairman, is to highlight a bit about Export Development Canada. We're a commercial crown corporation. We haven't been covered by the Access to Information Act for many, many years. There are reasons for that. We are covered by some special provisions of the act, particularly section 24 and section 18. There are some reasons for that as well.

In terms of the context for what we do, last year we provided and supported over $57 billion in trade and investment from Canada through our insurance programming, loan programs, political risk insurance, and other events. We have 7,000 clients across the country in every sector of the economy from the resource sector, service industry, and manufacturing, and 90% of our clients are small business. Last year we had a record high client satisfaction rating for our programs. Canadian businesses like what we have and they need more of it, particularly given current world market conditions and a 90-cent dollar.

So we're a commercial crown corporation that is very different from a government department, not only in the way we deal with the clients we serve. We are financially self-sufficient. We manage ourselves to generate enough revenue to sustain our business and grow our business without any appropriations from government. We have not had appropriations from government for over 10 years. There is still scope to be more open and transparent about how we use the revenues we raise from our clients and this bill will force that. It's a good thing.

Not only do we deal with our clients on a commercial basis and protect their commercial information, over 60% of our business is done in partnership with other financial institutions in Canada and around the world. Those institutions also operate on a commercial basis.

That leads to my final point. We very strongly support the approach in this bill of applying access to information to EDC, but not to our clients. It's essential that we continue to protect commercially confidential client information from release.

Section 24 has been in place. It's worked effectively for the Business Development Bank of Canada in protecting the information they have from their clients, and it will work well for us as well.

Without it, thousands of Canadian companies would be at risk of losing our service. We must obtain a great deal of commercially sensitive information from our clients as we deliver our services well, generating a commercial return. We serve it directly from our clients, and as part of our due diligence we work as well, as I mentioned earlier, with a number of international private sector commercial institutions.

With over 60% of our work in partnership abroad, these institutions simply will not engage with us unless we can assure them that we're going to protect the information we obtain in confidence. In fact, we are regularly asked, as part of our normal due diligence, to sign non-disclosure agreements and to confirm that the information is not subject to the Access to Information Act.

I can give you a couple of examples of the nature of that information. One example might be where we're offering to lend money or insure a business to a U.S. airline. As part of the diligence we have to ensure that we're protecting Canadian exporters' investments in that market, we may rightly demand to see code-sharing agreements with other commercial airlines in the United States. This is extremely sensitive information, and frankly, if there's any risk of that becoming public, we won't obtain that information. It doesn't just hurt EDC, it means we're impaired in our ability to support exports of Canadian engines, helicopters, or airplanes. So it's a very important example.

Secondly, we lend money, on occasion, to foreign companies. The Codelco copper mine is an important case. It's the largest copper mine in the world. We've been involved in financing with Codelco to encourage them to procure more of their goods and services from Canada, an especially vital relationship for smaller business. Five years ago, Codelco had only two or three Canadian suppliers. Currently we have managed relationships to the point where we have 125 Canadian suppliers, and Canada is the second largest supplier to Codelco--the largest copper mine in the world.

This simply won't work if we go to a group of financial institutions and say, “We want all the due diligence to protect our investment, but we can't assure you that this won't be made public.”

Given the nature of concerns and the way we do business, the way Canadian companies must work to succeed internationally, Canadian exporters were very, very concerned about our programming being subject to access to information.

Given the bill that's before this committee, my advice to all concerned businesses is that this bill properly focuses on EDC information and protects client information.

I'm really pleased to have the occasion to meet with you and just give you a little more context of why it's so vital to protect Canadian business interests in these very challenging export times. My colleagues and I would be very open and welcome your questions in that regard.

[The Chair, Conservative, David Tilson]

Thank you. We're pleased to have you here, too.

Mr. Tonks.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you, Mr. Chairman.

Thank you, Mr. Wright and your colleagues, for being here.

I have just one question. Is there anything in this legislation that compels you to do something that you weren't doing under your own disclosure information or disclosure act?

[Rob Wright]

Absolutely. We have talked about a number of voluntary disclosures of the Auditor General's audit of us. That would now be subject to disclosure.

Our internal audit reports are not subject to our voluntary disclosure. Obviously they would be subject to disclosure.

Our internal policies and more detail on how we spend the resources, $190 million a year that we raise from exporters, would now be subject to access to information.

All the ways we manage ourselves would be subject to access to information. So there'd be much more disclosure, and I think it would have a very significant impact on our organization.

We've organized a task force under Mr. McArdle's leadership, we've engaged outside legal counsel on how to prepare, we've engaged some expertise from the Government of Canada that can help us prepare, but it will be a major change for us.

We welcome that. I don't think that's a bad thing for an organization like ours. Our preoccupation has been to ensure we continue to do business as a commercial entity, because that's who we're competing with internationally, to help win jobs for Canada.

The safeguards under sections 18 and 24 in particular make that very, very clear. I just want to underscore that when we offer our support for this bill.