Information & Ethics Committee on May 6th, 2009

[The Chair, Liberal, Paul Szabo]

This is meeting 19 of the Standing Committee on Access to Information, Privacy, and Ethics. Our order of the day is to continue our work on Access to Information Act reform.

Today we're welcoming as our witnesses the Canadian Bar Association. We have Gaylene Schellenberg, a lawyer from the legislation and law reform directorate; David Fraser, vice-chair, national privacy and access law section; and Priscilla Platt, executive member, national privacy and access law section.

Welcome to all of you. It's always good to hear from the Canadian Bar Association on a variety of issues in a variety of committees. I know that you do a lot of work and are very helpful to Parliament and to its committees.

I understand you have some opening statements, and then we'll take questions from the members on the so-called quick fixes that were raised with us as a consequence of the report cards from Mr. Marleau.

Gaylene, were you going to start off?

[Gaylene Schellenberg, Lawer, Legislation and Law Reform, Canadian Bar Association]

I will.

Good afternoon. I'm Gaylene Schellenberg, a lawyer with the legislation and law reform directorate of the Canadian Bar Association.

The Canadian Bar Association is pleased to have this opportunity to present our views on reform of the Access to Information Act to you today. The CBA is a national association of over 38,000 lawyers, law students, notaries, and academics. An important aspect of the CBA's mandate is seeking improvement in the law and the administration of justice, and it is from this perspective that we appear before you today.

With me are two representatives of the CBA's national privacy and access to information law section, both of whom specialize in access to information law and privacy law. David Fraser is the current vice-chair of the section, and is from McInnes Cooper in Halifax, and Priscilla Platt is an executive member of the section from Heenan Blaikie in Toronto.

Mr. Fraser will begin with a general perspective, and Ms. Platt will then highlight some specific issues we've raised.

[David Fraser, Vice-Chair, National Privacy and Access Law Section, Canadian Bar Association]

Thank you very much for the opportunity to come and comment on this very important piece of legislation.

The history of the Canadian Bar Association's involvement with the legislation really goes back and predates the legislation itself. In 1979 the Canadian Bar Association actually passed a model bill related to access to information and privacy; that model bill had very strong similarities to what became the Access to Information Act and our federal Privacy Act.

In 1981 the Canadian Bar Association, with a special task force on access to information law and privacy, made a submission to the Standing Committee on Justice and Legal Affairs, and then subsequently made further submissions in 1986 as the legislation was in its infancy. In 1986 the CBA national council also passed a resolution endorsing the Access to Information Act.

We're here because we've been invited to make comments on the quick fixes, as Mr. Szabo just characterized them, and we do have comments on all of those quick fixes. We will also raise two other issues that we'd like to bring to the committee's attention.

You'll find that all these are basically consistent with everything the Canadian Bar Association has said about the Access to Information Act, and having re-read this morning the documents produced in the early 1980s, I found it interesting that a number of the issues pointed out at that time as being important for consideration still remain important considerations.

My colleague Priscilla is going to talk about the recommendations, or at least our responses to the so-called quick fixes, but first I'd like to bring to the committee's attention a topic that has been mentioned by previous witnesses but probably not discussed in great detail: the system that was known as CAIRS. It was a computerized system for the coordination of Access to Information Act requests. It had been in place for some time, but was discontinued by the Privy Council in May of 2008. It was a centralized system into which all Access to Information Act requests were entered, ostensibly for the management of those requests across the government.

It was discontinued in May of 2008 primarily because there was a perception of what's been called amber lighting, or red alert, so that politically sensitive Access to Information Act requests would go to the attention of the appropriate people in ministers' offices or to those on their communications staff.

The CBA's national privacy and access law section has considered the fact that it was discontinued, and has also carefully considered the fact that during the time it was in place, the system itself was subject to Access to Information Act requests. It was used by journalists and others with a strong interest in Access to Information Act issues in order to keep track of those issues and essentially be able to tell how the act itself was working and what sorts of requests were going through. It was an important insight into what was happening inside government.

The national privacy and access law section of the CBA thinks the system should be restored, and that it should in fact be restored in a wider way that would make all the information on it publicly accessible, other than information that would disclose sensitive personal information about requesters or information about individuals whose information is being requested.

This would be consistent with the Canadian Bar Association's view that the Access to Information Act, which has been characterized as quasi-constitutional by many courts and in a number of court cases, is a critical tool in making sure that our form of Canadian responsible government maintains the characteristic of being transparent and open to everybody. It increases accountability, and the restoration and expansion of this CAIRS system would go a long way towards doing that.

The second issue I'd like to touch on has only been touched on in a glancing way by some of the witnesses before this committee. It's the question of solicitor-client privilege. The Canadian Bar Association has obviously, and for quite some time, taken a very strong and consistent position in protection of solicitor-client privilege.

We would like to ask this committee, although it's not contained in any of the quick fixes, that if any of the suggestions coming out of this committee in its final report touch upon the important matter of solicitor-client privilege, it be done very carefully and in consideration of all the issues that this committee has already dealt with on that topic, and also consistent with the very high value placed on solicitor-client privilege in our legal and constitutional system.

Again, thank you very much for this opportunity. I'll hand it over to my colleague Priscilla.

[Priscilla Platt, Executive Member, National Privacy and Access Law Section, Canadian Bar Association]

Thank you very much.

I want to join my colleagues in thanking you for inviting the Canadian Bar Association to make comments to you today. We are very grateful.

I'm going to take you through the 12 recommendations the commissioner has made. I can tell you in advance that we have particular comments that are a little different in respect of recommendations 7, 8, and 11. We support recommendations 1 to 6 as they're drafted.

I can take you through them or I can just go to the ones for which we have specific alternative options, recommendations 7, 8, and 11. I'm in your hands.

[The Chair, Liberal, Paul Szabo]

Why don't you very quickly summarize the main reason for support, but spend more time on those where you need to develop a position?

[Priscilla Platt]

In respect of recommendation 1, which is the recommendation that there should be a specificied period of review of every five years, the current situation under the act is, as you know, that it's supposed to be permanently reviewed, but there's no particular timeframe. That has caused some difficulty. I think it's wonderful that there is this special committee now, which reviews this particular statute. This is enormously helpful. It's very common, if you look across the country in a sort of environmental scan, to see that there is a review every five years. I think it might heighten the importance of making specific changes to the legislation in a regularized fashion.

As to recommendation 2, currently, as you know, you have to be present in Canada to make a request. That is easily circumvented through agents and so forth, which is, I understand, a substantial reason that one of the departments at Citizenship and Immigration gets a substantial number of requests. Individuals are asking for their own personal information, but they must do it through agents, and they do it under the Access to Information Act. If you look at the statutes across the country, there's no requirement for permanent residency or residency at all. In our submission, it's not something that is a modern take on this legislation; the legislation should be open to everyone. We're not entitled, under this legislation, to ask individuals where they live, where they're from, why they want it, and so forth. Our recommendation is to support this one.

On recommendation 3, we also support giving the Information Commissioner order-making power for administrative matters. These matters fall into a kind of limbo, because there's no recourse to the Federal Court, although there's no denial of access, and while the commissioner can make a recommendation, there's no real need to follow the recommendation under the current regime. We support giving the commissioner order-making power, but we note here that the Federal Court process would have to be revised accordingly. The current process is based on the assumption that there's an investigation report by the commissioner. If there are order-making powers, maybe there would be less recourse to the Federal Court, to an appeal on a question of law or something of that nature. We believe, as we note here, that there would need to be some thought given to how one would judicially review this power.

Recommendation 4 is the discretion to investigate complaints. This really involves giving the Information Commissioner power like that the Privacy Commissioner has under PIPEDA, which is the private sector privacy law, to not consider a complaint. Currently, anytime someone makes a complaint, the commissioner must investigate and render a report. There are examples here on page 4 indicating that under PIPEDA there are three grounds upon which a complaint may be disregarded: one is that the complaint is more appropriately dealt with by means of another procedure under our law; the next, that the length of time that has elapsed would make the matter moot; the other, that it is “trivial, frivolous, or vexatious”, which is something that most commissioners have the power to deal with, as the courts do in terms of litigants. In our respectful submission, this would be appropriate for the Information Commissioner as well.

Recommendation 5 is giving the Information Commissioner the express power to conduct public education and research, where such power is express. Obviously, the commissioner would be doing this within the mandate. Right now, the act is silent in this respect.

Recommendation 6 is an advisory mandate for the Information Commissioner on legislative initiatives. We support this; we also offer other options for achieving it. One is of course through statute; there are examples of that in other jurisdictions in Canada. The other is through a Treasury Board policy, which might be equally effective.

On recommendation 7, we think there should be a bit more study before we can fully recommend this option. This has to do with the administrative records of the Senate, the House of Commons, the Library of Parliament, and the judicial branch. Here again, we note on page 6 of our submission....

I'm sure you're aware of the policy in 2006 of Treasury Board of proactive disclosure, which has been enormously successful. I don't think it is talked about enough in Canada, but the government-wide publication of travel and hospitality expenses was immediately successful as soon as it was implemented. There is no need to make an access request for this information; it is right on the website.

The submission of the CBA in this respect is that we should look to that as a model in respect of the administrative records of some of these entities. To say that you could exclude certain privileges and so forth would be very awkward, because as you know, with independent oversight, exclusions are reviewed by the commissioner, and you would get into records that ostensibly are not going to be covered. You want to disentangle the administrative from other records of the courts, etc., and it would be very hard to disentangle them from the process once they're involved. If the goal of this particular recommendation is to have more openness and transparency about, say, spending on the administrative side of these entities, that can be achieved, in our respectful submission, in the same way in which proactive disclosure was successful. We agree with what the commissioner is trying to achieve in terms of openness, but we disagree on the manner and suggest that other options should be reviewed.

In respect of recommendation 8, we agree again with the commissioner that the way cabinet records are dealt with currently is unsatisfactory. The problem we have is that it's not an exclusion, and you have the independent review by the commissioner. We disagree first of all when the commissioner suggests that it be a discretionary exemption. We, with respect, believe it should be a mandatory exemption. If it's discretionary, one government can make hay of it in respect of a former government's records. We believe it is appropriate for it to be mandatory. Cabinet confidence is essential for the Westminster style of government that we have, and the Supreme Court of Canada has commented on this very recently as well, in a case called Babcock. There has to be cabinet solidarity, and if cabinet ministers were concerned that they couldn't speak openly in cabinet for fear that their comments might be disclosed in some manner, that would not enhance our democracy in Canada.

What we're suggesting is that this be studied further, but also that if we wanted to look at this for the purposes of amendment, taking it out of the exclusion zone and putting it into the exemption area would be appropriate—but only if it's a mandatory exemption.

Secondly, the point we make on page 7 is important because, in contrast with the other jurisdictions in Canada, the federal government has national security records and records of diplomatic relations and other things of that nature that provinces and territories don't necessarily have. We believe that what the Supreme Court of Canada said in a case called Carey back in 1986 still holds true: that these records are different. In that case, the Supreme Court of Canada said that even judges shouldn't see those sorts of records, and maybe for a very long time.

We think those particular kinds of records could be carved out and maybe still remain an exclusion, but that the question certainly should be studied further in terms of an approach to those records.

In respect of recommendation 9, respecting the approval of the commissioner for extensions beyond 60 days, right now we have in section 9 of the Access to Information Act no limit on the extension. What we're saying is that if you look across the country, it's not uncommon to see a limit on the time for an extension, and we agree with the commissioner that there should be a timeframe for the length of time that a department can extend the time for responding to a request.

In recommendation 10, you'll find the timeframes for completing administrative investigations.

This is quite interesting, because there are other statutes, notably in British Columbia, that require all the investigations and decisions to be completed by the commissioner within a one-year period. This recommendation, which we support, is that the commissioner would have to respond within a particular timeframe only for administrative matters.

I have read some of the comments of other witnesses who have come before this committee, and I think the biggest criticisms now are on the huge delays, as they have indicated. Some of the delays of most concern are with regard to timeframes, fees, time extensions, and so forth. This would give the commissioner an obligation, once he receives a complaint, to respond within a fixed period of time. That might enhance the efficacy of the legislation. I know that the commissioner supports that.

Recommendation 11 has to do with direct recourse to the Federal Court for access refusals. This would take place in accordance with this recommendation if an individual made a request to a government department and the department declined. They, the individual requester, would then have a choice as to whether they wanted to complain to the commissioner or to go directly to Federal Court.

We agree again here that there's obviously a problem in responding quickly enough on these complaint matters, but we believe giving the commissioner the tools to undertake his mandate efficiently and appropriately is preferable to giving complainants direct recourse to the Federal Court.

Our prime concern is that most individuals would not have the wherewithal to get through the myriad of complexities of the Federal Court. Second, there would still be a delay in the Federal Court, as that's not immediate. Third, and I think most important, is that it would take an enormous amount of resources. Only the so-called wealthy, the requesters who have a lot of money, would be able to properly have recourse to the Federal Court, so we don't think it's the way to go.

In fact, if you look across the country, the more modern approach to all of this is to have binding order-making powers at the commissioner level and to have very limited recourse to the courts through judicial review only, and not through appeal. This would go against the kind of trend that is trying to establish itself, and some of your witnesses have already commented on the need to have a simpler, quicker process to resolve these issues.

Finally, recommendation 12 is a reference to time extensions for multiple and simultaneous requests from the same requester. In section 9 there are only two reasons for a time extension on the part of the department: when there is a large volume of requests to be searched or produced, or when consultations necessary to complete the request can't be completed within the timeframe. Experience across the country and in other jurisdictions in Canada has shown there are other reasons, legitimate reasons, for a department not to get to a request within 30 days, and that's not reflected here, so we support the commissioner's submission in this respect as well.

We recognize that some of these recommendations and some of the things we have suggested may have certain resource implications, but as my colleague David has indicated, we think the legislation is very important for the strength of our democracy. We think these recommendations, at the very least, are appropriate.

Thank you very much.

[The Chair, Liberal, Paul Szabo]

Thank you, and thank you for recognizing that we weren't doing a comprehensive review of the entire act. This really, as you know, spawned out of the last series of report cards, in which there were some difficulties in some areas. These quick fixes are somewhat a split between administrative and legislative.

I'm not sure whether there is any consensus that could be reached, or whether or not any or all of these are going to have the intended results. But they do at least call for a more consistent and regular review. I don't know how you feel. Maybe in your answers to the members you can deal with such things as whether, if we did a five-year review, it would deal with the fact that we haven't had a serious review of the entire act. And how does that happen? It might be beyond the scope of a parliamentary committee that has other responsibilities; it takes up a fair a bit of resources and expertise.

I'm sure the members have lots of questions for you, so we're going to go right to those.

We're going to start with Mr. Wrzesnewskyj, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Chair.

I'd like to thank the panel of witnesses for their submission and the expertise they bring to the table.

As the chair has noted, these recommendations are continuously referred to as “quick fixes”. My worry is that what we're proposing—and it's clear that this is what we're proposing—is an attempt to temporarily solve what is a real issue and a real problem, a problem that goes to the very principles of our democratic system: the transparency of government.

Some of the other terminology that's been used by witnesses before the committee when referring to our access to information system as it currently is includes calling it ineffective, an embarrassment. The access to information ombudsman for New Brunswick stated that the very officials who are to help expedite have evolved into a very different role when it comes to access to information: they've become gatekeepers.

We hear constant reference to the fact that members of Parliament, elected officials acting on behalf of the electorate, are amber-lighted. The commissioner himself has said that this whole section has a “culture of non-disclosure”, the exact opposite of what we're looking to achieve. In an interview on February 9, he even pointed a finger; he said, “My understanding is there is a stranglehold in the centre on communications”, referring to the PCO.

My worry is that we'll put these proposals forward but we are really not addressing the fundamental issue here: that this system is currently dysfunctional. It's actually doing the opposite of what was intended a quarter century ago when it was enacted.

I thank you for the expertise you've brought on each one of these quick fixes, but I'm more interested in your preamble. In your preamble you noted that this is quasi-constitutional. It actually zeros in on a fundamental principle. In fact, a very different regime has come into power in the United States, with a very different approach from that of the previous regime. President Barack Obama—you quoted him in your preamble—stated that “A democracy requires accountability, and accountability requires transparency.” And then, referring to their legislation, he goes on: “In our democracy, the Freedom of Information Act...which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government.”

Do you see these quick fixes as demonstrating, on our behalf, a profound commitment to this fundamental principle of ensuring that our government here in Canada is an open government as well?

[David Fraser]

We agree entirely that this piece of legislation is critical. It's a critical tool for citizens to fully participate in the democracy we have. Our governments are accountable to the electorate at election time. This piece of legislation is a critical window into the operations of government, so that when it's time to cast their ballot, the citizens fully understand what it is that the government has been doing and is able to call the government to account on a regular basis between elections.

Our committee would have preferred to see a comprehensive review of the Access to Information Act, similar to what we called for with the Privacy Act. We were somewhat constrained by what appeared to be the parameters of the discussion here, which is to take a look at these quick fixes.

In this instance, I can only speak on my own behalf, rather than on behalf of the CBA. Do I expect that, with the implementation of all of these recommendations—the ones we support from the commissioner and the ones we have put forward—we will we have a spectacular improvement in the administration of this legislation and in the transparency and accountability of government? I do not expect it to the extent to which I think a significant number of people would like to see it go. These will make marked improvements but will not go to the core of the sentiments you were just repeating from other witnesses.

[Priscilla Platt]

A lot of these recommendations will enhance openness. If you want to have a wholesale review of the legislation, these recommendations might get you where you want to go, if the act were required to be reviewed every five years. There are gradations. All of this legislation, if I look across the country over the years I've been working in this area, starts off in one way, and as the technology and the times move, slowly moves over. There's often inertia. This would be one step; it's not perfect.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

The judicial branch of government works under the principle of an open court system. Everything gets put out there. With the exemption of cabinet confidences within the parameters that you've suggested, how would you feel about that same principle having been applied 25 years ago? Once again, the mechanics just didn't allow it: we had to have physical access to information sections within buildings; we needed someone at the door to help expedite; etc.

It's also very handy to keep information isolated, and because there's a procedural aspect, it has become a procedural way of delaying and stopping. I referenced amber-lighting of members of Parliament's requests. With the current situation, I have numerous examples of not month-long but year-long delays of requests from members of Parliament on substantive and important issues of public interest.

Shouldn't we move to a modern system whereby we can just post all this information? We should just revamp the whole system. What are your thoughts on that?

[Priscilla Platt]

I think we could be using technology much better. I mention this proactive disclosure example from 2006 with Treasury Board. It's been enormously successful. Everyone's always interested. We all know what prompted the interest in how much people spent for their lunches and so forth: it was taxpayers' dollars.

We could use that system in some of the ways we're recommending here to make the system more open, without requiring people to go through even an access request at all. I think President Obama spoke about that too, of using technology to achieve more transparency at a time when we have the means to do it—not of everything immediately, cabinet being a good example. In the policy development process, you can't say...or you could, I suppose, but most jurisdictions in most democracies allow public service to develop policy in confidence until it's at some point when they can disclose it or get input from members of the public. There are reasons for some exemptions, but I agree with you that we could use technology much better to achieve transparency.

[The Chair, Liberal, Paul Szabo]

Thank you.

Mr. Nadeau, it's your turn.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chairman.

Good afternoon, Ms. Platt, Ms. Schellenberg and Mr. Fraser. I find it interesting that you quote Mr. Barack Hussein Obama in your brief. That's good; it's a breath of fresh air from the south. I'd like to know whether we could also cite our previous prime ministers, if they said as much about such fundamental things as access to information. That will be a job for later.

When I think of the Access to Information Act, the image I have is that of an individual who, in accordance with the rules he must obey because he is a government employee, draws lines on sheets of paper with a big marker pen to make sure no one has access to much in that document, but the semi-colons don't disappear.

The minister recently appeared before the committee. We asked him when his government would be introducing a new access to information bill to modernize the current act. Requests have been made for that purpose for 20 years now, if not more. The committee has even introduced motions in the House of Commons asking the minister to table a bill to modernize access to information by May 31, 2009. Just back from Niagara Falls, he absolutely wanted to have nothing to do with it. It was a case of logorrhea in a desert of ideas, which boiled down to the fact that it was out of the question.

The fact nevertheless remains that you've done a certain amount of work. I was a good student; I read your brief. I'm a teacher by training, not a lawyer. I found your remarks interesting. Ms. Pratt, earlier you made a good presentation. If I had to make a brief comment, I would say thank you very much for the work you've done with regard to Mr. Marleau's remarks.

Today, we know that Mr. John Reid, Mr. Marleau's predecessor, previously drafted a bill to suggest amendments to the Access to Information Act. Historically, you probably know more about the subject than I do. You don't seem to agree on Mr. Marleau's three recommendations. You agree on certain points, such as points 7, 8 and 11, which you cited earlier, which deserve to be reconsidered, in your view.

For my part, I wonder about point 8, which concerns Cabinet. If I correctly understood the documentation I read for the meeting with the present Minister of Justice, Mr. Nicholson, in some Canadian provinces, people have access to documents from the cabinets of those provinces. Are you aware of that situation? If that's the case, why would people be able to access those documents at the provincial level, but not the federal level? I'm speaking to the three of you. You're experts.

[Priscilla Platt]

Well, I think the issue about cabinet records is that under the Access to Information Act here federally, it's an exclusion, and there is a certification process to determine whether in fact it's a cabinet record. Either the Clerk of the Privy Council or the Attorney General certifies it, etc.

The same process does not exist anywhere else in Canada that I'm aware of. Most of the time it's an exemption, as opposed to an exclusion, so it's like any other record: the person makes a request, and if it involves a cabinet record, they come back saying that it's exempt based on this cabinet record exemption. In most provinces they have a right to appeal to a commissioner, and the commissioner views the record and makes a determination.

I don't think it's the case anywhere in Canada that cabinet records are open. I know that in British Columbia they do post certain cabinet decisions on the Internet, and you can see in the Access to Information Act that there are some exceptions to the exclusion--which means it falls within the act--for decisions that have already been made by cabinet if the record is 20 years old or if the decision was made in the four years....

I forget; I'd have to look at it. In other words, there are some exceptions that fall within the act, as opposed to its being excluded. I think that's the real distinction in the federal act.

The exceptions occur if the decision discussion papers have been made public, if it's been four years since the decision's been made, or if the records are over 20 years of age. In Ontario, for example, if the record is over 20 years of age, it's not exempt. Typically cabinet records fall into exemptions, and the difference here in the federal government is that it's an exclusion, which means it doesn't even fall within the act at all, as long as it's truly a cabinet record.

[Richard Nadeau, Bloc, Gatineau, QC]

At the federal level, it's 30 years for Cabinet secrets, isn't it?

[Priscilla Platt]

Well, it says here that it's confidences that have been in existence for more than 20 years. Then the exclusion doesn't apply, and it falls within the act. It may still be exempt under some other exemption, or it may be disclosed. Twenty years is what is common at the moment.

[Richard Nadeau, Bloc, Gatineau, QC]

It wasn't until 2000 that we were able to know more about the decisions made by the Trudeau government during the October crisis in 1970, when taxi drivers, poets and other individuals were imprisoned for reasons we can understand. Citizens were stripped of their fundamental rights, and we nevertheless had to wait 30 years to realize that those decisions were completely random and partisan.

In Recommendation 11, Mr. Marleau suggests allowing requesters direct recourse to the Federal Court for access refusals. However, you downplay that recommendation. Can you give us a further explanation?

[Priscilla Platt]

Our main concern about Federal Court access is that it is expensive and complex. Our view is that we should explore other avenues, because the trend across the country is to have quicker and simpler recourse to some kind of adjudication.

For example, if a department refused access, the trend across the country is that there's a binding order. You go to a commissioner or a tribunal or to specialized expertise; you get a decision quickly, and that's it. If you have to go to court after that, it's in a very narrow context.

To tell people who haven't got what they wanted from a department that they can go directly to the Federal Court would require revising all the provisions that now envisage going to the Federal Court under the act, because it's all predicated on going to the commissioner first, getting an investigation, getting a report, and having a summary hearing. You'd have a whole different process.

Second, it would be very costly. Not every requester could afford to go there, so you would have two levels of justice. Most folks would still have to go to the commissioner because they wouldn't be able to afford to go to the courts, and the ones who could afford it would go to the courts to get a different resolution. The CBA feels that wouldn't be fair and is not an appropriate way to deal with the backlog. If there is a backlog and a difficulty getting resolution from the commissioner, we should ensure that the commissioner has the tools to do his job.

[The Chair, Liberal, Paul Szabo]

Thank you.

[Richard Nadeau, Bloc, Gatineau, QC]

Thank you, Mr. Chairman.

[The Chair, Liberal, Paul Szabo]

Mr. Siksay, please.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

Thanks to all of you for being here today. It's been very helpful.

Ms. Platt, just to follow up on what you were saying in terms of the commissioner being given the appropriate tools in that case, one of them, as you suggested, was the order-making power. There has been some concern expressed that when you give the commissioner order-making power, things end up in court anyway. Have you seen any evidence in other jurisdictions where the order-making power exists that it also involves a lot of cases ending up in court anyway, clogging the courts or putting a burden on them?

[Priscilla Platt]

No. I think you have to look at the numbers.

I'm very familiar with Ontario. I've worked in that system for 20 years, and I can tell you that there are very few judicial reviews relative to the number of decisions the commissioner makes. In Ontario, the commissioner makes about 40 decisions a month. I'd have to say that if one of those is judicially reviewed every month, that would be a lot. It's very rare.

Also, because they are judicial reviews and not appeals, the courts give a lot of deference to the commissioner for his or her expertise, and it's very difficult to be successful on a judicial review. As a matter of recourse, most people get a fairly quick and final decision from the commissioner and then go away. And they usually go away happy--happy in the sense that they got recourse to justice, that they got an adjudication.

I know that the commissioner here is not requesting order-making power across the board. Of course, there are huge resource implications, but he is asking for it in a manner that I think would assist with the backlog, because on those particular matters, there is no recourse to the court in any event.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Are there other tools that would be helpful in dealing with the backlog, tools that you haven't talked about in the brief or that you might know from other jurisdictions?