Evidence of meeting #4 for Government Operations and Estimates in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tribunal.
A recording is available from Parliament.
Liberal
Omar Alghabra Liberal Mississauga—Erindale, ON
Okay, but you were saying there are provisions to have in camera sessions.
Senior Legal Advisor, Public Servants Disclosure Protection Tribunal
If asked and granted by the tribunal, subsection 21(3).
Liberal
Omar Alghabra Liberal Mississauga—Erindale, ON
When there are in camera sessions, there won't be any audience, so we can somewhat say that the hearing would be private.
Senior Legal Advisor, Public Servants Disclosure Protection Tribunal
It's possible, but the burden of proof is on the party who will ask for it. The standard is quite high. In French, it would have to be nécessaire, so it's not simply “I would prefer that”. You have to demonstrate why it has to be in camera. So the burden of proof is on the shoulders of the party who asks to have an in camera hearing.
Liberal
Omar Alghabra Liberal Mississauga—Erindale, ON
Will the public servants be provided with any resources? I understand that probably the government side will have their own lawyers arguing in front of the tribunal. Will the complainants have any resources available to them to make their case?
Registrar, Public Servants Disclosure Protection Tribunal
Again, the complainants will be working closely with their unions. The committee we've established to review the rules of procedure does include representation from the Public Service Alliance of Canada and the Professional Institute of the Public Service. It would be up to them to decide whether they want to. It would be up to them.
Liberal
Omar Alghabra Liberal Mississauga—Erindale, ON
But the tribunal will not provide anyone.
Are the RCMP included?
Registrar, Public Servants Disclosure Protection Tribunal
The RCMP is covered by the legislation.
Liberal
Omar Alghabra Liberal Mississauga—Erindale, ON
I see that CSIS is excluded. Do you know the logic behind that?
Registrar, Public Servants Disclosure Protection Tribunal
I was not privy to or not involved in drafting the legislation. One could guess, but I don't think it's my place to say. I was not involved. None of us were actually involved in the drafting of the legislation.
Senior Legal Advisor, Public Servants Disclosure Protection Tribunal
Obviously it would be for security purposes. That's the only thing I can see. The Canadian Forces, CSIS are related to the security issue. That's the only—
Liberal
Omar Alghabra Liberal Mississauga—Erindale, ON
I think the Canadian Forces is understandable because of the hierarchy and structure there, but given that there is provision for private hearings and that the RCMP, who also could be involved in security matters, is included, I find it somewhat strange that CSIS is excluded, especially given the recent incidents we've had in the public about some issues. I would have liked to see the men and women who serve at CSIS protected by this legislation. I guess we don't know the logic behind that.
Thank you, Madam Chair.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
If I have understood correctly, when an employee of the public service decides to turn to the integrity commissioner, it is the commissioner who does all the research and determines whether in fact any wrongdoing has been committed, whether there has been disclosure and so on and so forth. Once the research has been completed and the file established, you are called upon for a decision. Is that right? No?
Registrar, Public Servants Disclosure Protection Tribunal
No, not quite. You talked about wrongdoing. However, this matter does not come under the purview of the tribunal whatsoever. I do not remember how we say this in French.
“agent of Parliament”.
I've been told that the term is “officer of Parliament”. Ms. Christiane Ouimet is an officer of Parliament.
Following her investigation, if she establishes that the complaint is in fact related to wrongdoing, she must table a report directly in Parliament within 60 days. Parliament would therefore be aware of the situation.
The commissioner plays two roles. As for the first part of her mandate, she receives the information with respect to the wrongdoing and the results of the investigations are tabled directly in Parliament. As for the second part of her mandate, this pertains to retaliation, and this is when the tribunal has a role to play.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
So you focus exclusively on the issue of retaliation.
I asked you earlier how many previous cases you based yourself on in order to come up with an action plan, and you told me that you didn't know. Did I understand you correctly?
Registrar, Public Servants Disclosure Protection Tribunal
That is very difficult to determine. This is a new tribunal and a new act; it is therefore really impossible to know how many cases we will have to deal with. We have to make assumptions. For example, we have to expect that there will be fewer cases the first year than there will be the second or third year. As employees become familiar with the legislation and the new mechanisms in effect, they will perhaps take the initiative. I manage my budget with as much flexibility as possible for the precise reason that I want to have the money I will need to hear the cases when they occur.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
That raises other questions.
If my memory serves me correctly, the employee who discloses wrongdoing must do so to his immediate superior, an individual who has been designated by the department. The conflict may be resolved right there. I have been told that the person may also deal with the Federal Centre for Workplace Conflict Management, at the Department of Justice. The individual may also deal with the Labour Relations Board. If the matter is not resolved, the person could deal with the conflict management office within various departments.
Could the resources that have been allocated to you this year, or at least the number of cases that you have this year, have the opposite effect? You may have to increase your human resources, but it is possible also that you have too many. Four judges will not be sitting at the same time. The 12 individuals working in your tribunal will not have to do any investigations or prepare files. I am not against allocating you this money; we will give it to you, obviously. I'm simply wondering if you have considered everything. The financial requirements of an in-depth investigation amount to so many dollars, and you need such and such a figure in order to go further. Then again, you may reduce your budget over the subsequent years.
Registrar, Public Servants Disclosure Protection Tribunal
There are several components to your question. First of all, I would like to clarify that I have not hired a team of 12 or 13 people. I have the money to do so, but I have hired only a small number of people. We are a team of six; that is what I call the critical mass. These are the people that I would need in order to hear a complaint. I do not intend to hire any more people only to have them twiddling their thumbs if there aren't any complaints filed within a few months' time.
Furthermore, the Federal Court of Canada judges are appointed. They're busy doing the work that they normally do. They will continue to sit on the Federal Court of Canada. They already have offices and they will sit only when there is a case. As for the tribunal, we have no problems with that either. They are not paid, they are not given a supplementary salary or anything else of this type.
You also explained that employees have various options available to them. That may be true in one sense, but the mandate of the Public Sector Integrity Commissioner and the mandate of the tribunal are really very precise. They do not deal with just any staff relations case. Their mandate pertains exclusively to complaints of retaliation further to whistleblowing. Should the employee feel that he or she has been the victim of retaliation further to whistleblowing, this individual can see the authority in the department or the commissioner. The other doors remain open. For example, the Labour Relations Board does not deal with retaliation cases as a result of whistleblowing.
Liberal
The Chair Liberal Diane Marleau
Thank you, Ms. Lacroix.
In simple terms, Ms. Bourgeois, the tribunal is there to help with redress. Is that true? If someone loses a job, is sidelined or is not earning the salary he or she is entitled to, this is when the tribunal comes into play. It has binding authority and it decides to pay or not to pay.
This is what the tribunal will do.
Registrar, Public Servants Disclosure Protection Tribunal
You are right, and it is what I should have said.
The existence of the tribunal will give employees an incentive to lodge a complaint with the commissioner, who in turn will file the application with us. The tribunal may make an order granting a remedy to the complainant; and may order disciplinary action against persons found to have taken reprisals.
Bloc
Diane Bourgeois Bloc Terrebonne—Blainville, QC
Madam Chair, I understood that quite well. I just wanted to make sure that the tribunal, as well as the commissioner, will do the work we need—work that other tribunals are unable to carry out. I want to be assured of that.
Liberal
NDP
Paul Dewar NDP Ottawa Centre, ON
I have a quick question, Madam Chair.
If someone had their employment terminated in July 2007 for reasons that would fit under the criteria, clearly that would be a case that you would handle.