Evidence of meeting #71 for Government Operations and Estimates in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tribunal.
A video is available from Parliament.
Liberal
Irek Kusmierczyk Liberal Windsor—Tecumseh, ON
Mr. Chair, I would just ask the officials to comment on what impacts the changes of Bill C-290 that we've been discussing here would have on the work of the tribunal.
Mireille Laroche Assistant Deputy Minister, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat
I will talk about it very broadly, and ask Mary Anne to supplement my answer.
I think Mr. Fergus explained it well.
Right now, when there is a reprisal, it's only the PSIC who can actually hear or receive those complaints. The PSIC will determine whether or not the matter needs to be referred to the tribunal, based on reasonable grounds. The amendments that we're proposing now would mean that, depending on which amendments—again, I'm talking very broadly—if ever the PSIC says that there is no ground, the individual could bypass that decision and go directly to the tribunal, and the case would have to be heard. As Mr. Fergus said, the legal threshold that the person would have to meet is higher. There are other amendments that are being proposed, as well, where the PSIC would not even be involved, depending.... That is also being considered.
In terms of the mechanics, we believe, from a TBS perspective, that this is actually lessening the role of the PSIC in terms of really determining whether or not there is reprisal, and that naturally, given that we're going to the tribunal, there's potentially a higher cost that will be associated because it's a much more labour-intensive approach with a higher standard that needs to be attained in order to prove.... There would be, potentially, additional costs and time that would be taken for these cases to be heard.
I will turn to Mary Anne to correct me if I said anything wrong or to add anything.
Mary Anne Stevens Senior Director, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat
Thank you very much.
Perhaps everyone already understands this, but just to be absolutely clear, clause 19 in the bill is the one that provides that where the PSIC has dismissed the complaint of reprisal, the individual can take the complaint themselves to the tribunal. All of the other sections listed by Mr. Fergus are consequential to that amendment, so they're all tied together in one package.
If you approve clause 19, it would mean that the complaint of reprisal would still have to go to the commissioner. The commissioner would investigate, would determine whether or not there were reasonable grounds for believing that a reprisal had taken place, as my colleague mentioned, and then would decide whether or not to refer the complaint to the tribunal.
However, with what the bill is proposing, even if the commissioner dismissed the complaint on any grounds—it could be that there was no protected disclosure or it was found that there was no reprisal—the complainant could still basically set aside what the commissioner found and go directly to the tribunal with their complaint of reprisal.
At the tribunal, as was mentioned, instead of reasonable grounds for believing that a reprisal had taken place, they would be facing the standard of a balance of probabilities. It may not mean a lot to you or me, but in the legal world, it's a higher standard than what the commissioner applies.
The commissioner, if you've had a chance to read his submission to your committee, has also said that it would basically be setting aside his role and therefore his investigation. Everything done by his office on that complaint would be wasted.
Assistant Deputy Minister, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat
I would just add and confirm that in the case where the commissioner dismisses it as no reprisal, the individual can refer that to the Federal Court for judicial review. It's not like it's the last step and there's nothing to be done. There's already, within the act, a mechanism to have a judicial review of that decision.
Liberal
Irek Kusmierczyk Liberal Windsor—Tecumseh, ON
That was my exact question, whether there exists an avenue for redress for someone who wants to appeal the decision of PSIC. It does appear that an avenue or mechanism, already does exist to get a judicial review.
Thank you very much for that clarification.
Conservative
Stephanie Kusie Conservative Calgary Midnapore, AB
I would also like to ask this of the experts. If someone failed at PSIC with a lower threshold, why would they go to the tribunal, which has a higher standard?
Senior Director, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat
I'm sorry, I didn't hear the beginning of your....
Conservative
Stephanie Kusie Conservative Calgary Midnapore, AB
If someone failed at PSIC with a lower threshold, why would they go to the tribunal, which has a higher standard?
Assistant Deputy Minister, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat
They may not know that there is a higher standard. This is an avenue that the act would provide to them, which could render a cost for them and a new trial for them. It's unclear why they would, but that doesn't mean that they won't.
Conservative
Stephanie Kusie Conservative Calgary Midnapore, AB
Okay. If it's a higher standard, then they would fail, regardless.
Anyway, is that the most likely...?
Assistant Deputy Minister, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat
Yes.
Bloc
Julie Vignola Bloc Beauport—Limoilou, QC
We were aware that certain clauses had to be amended so that a royal recommendation would not be necessary. All the clauses and amendments we have made have been studied very carefully by the legislative clerk.
Now you're telling us that, if a public servant decides to go before the Public Servants Disclosure Protection Tribunal, that results in additional costs, so the royal recommendation is necessary. However, the legislative clerk didn't raise the issue at any time. We've asked him that question many times.
I don't think it's up to the legislative authority to take away Canadians' right to go to the tribunal to assert their rights. Basically, that's what's being proposed. If we were to reject clause 15 and the others related to it, it would be as if we were telling people that, in the end, they don't have the right to go to the tribunal, because their case has already been studied and rejected. It would be a violation of people's right to justice and their own desire to use this tribunal. I don't understand how we could allow that.
Conservative
Assistant Deputy Minister, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat
Thank you for that.
I would say two things.
I cannot comment on the legislative clerk's analysis, since that's not our responsibility. For our part, as officials and analysts, we see that there could be costs associated.
As far as removing rights is concerned, in my opinion, that is not the case. Under the current act, if the commissioner rejects a complaint, the person can submit an application for judicial review to the Federal Court of Canada.
Bloc
Assistant Deputy Minister, People and Culture, Office of the Chief Human Resources Officer, Treasury Board Secretariat
Judicial review is usually done in writing. However, going before the tribunal could also result in costs for the individual.
That was my comment.
NDP
Gord Johns NDP Courtenay—Alberni, BC
I also have a comment.
This should have been brought forward as an amendment before, like for everybody else and every other party. We put forward our amendments in advance.
Mr. Fergus, to be fair, a government briefing on page 2 that raises concerns about the bill doesn't equate to putting forward amendments ahead of time. We were given notice on when we had to provide amendments. To have this dropped on us today, I don't think it's good faith.
Liberal
Greg Fergus Liberal Hull—Aylmer, QC
On the matter of good faith, we shared the note with members early last week.
Also, you don't need to bring forward amendments if you're seeking to negate a clause.
Conservative
The Chair Conservative Kelly McCauley
Shall clause 15 carry?
We have a tie. I'll vote yes.
(Clause 15 agreed to: yeas 6; nays 5)
(On clause 16)
We're on clause 16, colleagues.