Health Committee on May 2nd, 2023

[Sonia Sidhu, Liberal, Brampton South, ON]

Thank you, Mr. Chair.

Thank you to all the witnesses for being with us.

My question is to Mr. Herder.

In your letter, you stated that you believe the Minister of Health undermined the board's independence. However, subsection 5 of section 96 of the Patent Act states that the PMPRB must consult with the various parties, including the Minister of Health. Before that issuance of any guidelines, this requirement to consult and who must be consulted was also highlighted in the letter published on March 3, 2023, by the former acting chairperson.

How can you say that the minister undermined the board's independence in light of the requirements of consulting in the Patent Act?

[Prof. Matthew Herder]

I think communicating and talking in depth about what potential issues might arise if we were to move forward with those proposed guidelines—all of that is best practice.

What you have to remember is that we didn't have any of those conversations until a request to suspend occurred, which I interpreted as a very strong suggestion, if not a demand. There was no communication directly with the minister until that point in time.

The same request had been made in December by the most vocal stakeholder—to suspend, and not to consider our concerns and reflect as a board and make a decision about whether to extend or to move forward, etc., but rather to stop the consultation altogether. The language echoed the point very closely, I would say, very closely in time on the same day that we got the letter from the minister. It's my understanding that we also received a similar request from Innovative Medicines Canada. Again it was to suspend.

It's in that context that our independence was undermined.

[Sonia Sidhu, Liberal, Brampton South, ON]

Thank you.

Mr. Chair, I'm going to share my time with Majid Jowhari.

[The Chair, Liberal, Sean Casey]

Go ahead, Mr. Jowhari.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Thank you, Mr. Chair.

Given the fact that I only have about two and a half minutes, I have a couple of clarifying questions.

Mr. Clark, a number of times you mentioned you reached out to the minister or the ministry staff to ask for a briefing. The act also requires the PMPRB to undertake consultations.

Can you explain the difference between a briefing request and a consultation request?

[Douglas Clark]

We had seven meetings with Health Canada officials, and I would characterize all of those as briefings. We were briefing them on the content of the guidelines and also discussing the feedback we were getting from stakeholders.

The proper platform, or vehicle, for consulting a minister is typically by officials, but also, less frequently, a briefing with the minister as an opportunity to exchange information and answer questions. That is everything a briefing would typically entail.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Did the board at any time consider what the minister, or the ministry, was busy with, and what crisis was being dealt with specifically during the shortage of medicine at that time?

[Douglas Clark]

Yes, it was a crazy time all around, for sure.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Perfect. It was a crazy time, and you reached out to brief the minister a number of times.

To me, with 35 years of consulting background, there's a huge difference between consultation and briefing. I usually consult all my stakeholders, and then I go to my executives and brief them with what I had heard.

I know you didn't get a chance to brief the minister because of the competing, but I'm hearing a lot and I'd like to follow up on what was asked by my colleague, MP Jeneroux.

How do you define the working culture within the PMPRB? It looks like there are many issues there.

[Douglas Clark]

If you were to look at our public service survey results, we would typically outscore the public service as a whole on over 95% of the questions in terms of everything positive and outscore 90% of the other microagencies. I think we're doing just fine, in the main.

There's no question that three delays and a significant paring back of the regulations has had an impact on the morale of staff, but staff, I'm sure, were listening to the minister's testimony last week. He expressed multiple times his earnest desire to get pricing under control in Canada. That would have done an awful lot to boost morale among staff. The impact that's had on staff was aptly characterized in Professor Herder's letter.

[The Chair, Liberal, Sean Casey]

Thank you, Mr. Clark and Mr. Jowhari.

Mr. Thériault, you have two and a half minutes.

[Luc Thériault, Bloc, Montcalm, QC]

Mr. Clark, did you inform the chair about each attempt to meet with the minister?

[Douglas Clark]

Yes.

[Luc Thériault, Bloc, Montcalm, QC]

Professor Herder, in your resignation letter, you state that the minister's request was no different in form and substance from industry talking points.

Industry talking points go beyond just wanting to suspend consultations. When I read the letter, what I see is a federal minister of Health who is concerned about the views of his provincial counterparts, who questions the impact of federal reform on potential drug shortages and who wants to ensure that the serious concerns raised by some stakeholders are unfounded. There is a lot of talk about the industry, but that also includes many patient groups.

How is that similar to what the industry is saying, and how does that undermine the credibility of the board?

[Prof. Matthew Herder]

Thank you.

Again, in the context of a fall consultation period when there was no dialogue or briefing directly with the minister, the language of asking us to suspend is what hurt our credibility.

Second, there were broad similarities. Of course the wording was not exactly the same. The language of “shortages” could be interpreted to refer to “Well, we won't launch products in this country if these pricing reforms become real.” That is very much a talking point that industry has offered.

With the uncertainty of new guidelines, of course there was going to be a period of change. There was going to be a transitional period when we collected information and started to apply the new guidelines in practice. Of course, nobody likes change, but there were new regulations, so we needed new guidelines.

That point about uncertainty was also very similar to industry's talking points.

[Luc Thériault, Bloc, Montcalm, QC]

Mr. Clark, still, the opinion of provincial counterparts or the fact that a province decides to bring a dispute before a court of law is not trivial.

You initially introduced a reform, and two of its three points were disqualified by the Quebec Court of Appeal. You had a chair who was trained in this area and who said that she had concerns and wanted to ensure that the board would be able to carry out the reform without once again being involved in legal proceedings. That's what she wanted. What you're saying is that internally, you rejected this concern.

Basically, Mr. Clark, when someone disagrees with you, the executive director, they don't belong at the PMPRB, right? It's your business; the PMPRB is your baby. Is that what should be understood about the atmosphere within the PMPRB?

[The Chair, Liberal, Sean Casey]

Mr. Clark, we're well past time, but you're entitled to a response if you want.

[Douglas Clark]

They weren't my reforms; they were the minister's reforms. If the acting chair had concerns about the constitutionality of these reforms, she never expressed them to me when she was in the position.

[The Chair, Liberal, Sean Casey]

Mr. Davies, go ahead, please, for two and a half minutes.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thank you.

The Patent Act says, “Before the Board issues any guidelines, it shall consult with the Minister”.

Last week, though, the minister told this committee that it would have been inappropriate for him to contact the chair to initiate the consultations without an invitation from the chair.

The acting chair at the time, Madam Bourassa Forcier, said that the rules said she couldn't meet him. She was told that she was the equivalent of a deputy minister reporting to the minister and that she had to wait for the minister's invitation to meet him.

Help me explain it. How is this mandatory consultation called for by the Patent Act supposed to occur if neither the minister nor the chair of the PMPRB can initiate the consultation, or is there something wrong with what we were told?

[Douglas Clark]

Yes, it's just plain wrong, and it's completely inconsistent with past practice.

Typically, the chair, as I said.... I mean, it's true that the chair, from a purely pedantic standpoint, is a deputy head of the organization. Deputy heads of organizations are supposed to have “regular” interaction with the ministers who are responsible for their portfolios. The PM's directive on openness and accountability, on open and accountable government, says that very thing. It's completely within common practice for ministers and heads of administrative tribunals to have discussions about issues of overlapping concern—

[Don Davies, NDP, Vancouver Kingsway, BC]

Mr. Clark, if I can interrupt, because I have very little time, section 102 of the act says the following:

The Minister may at any time convene a meeting of the following persons:

(a) the Chairperson and such members of the Board as the Chairperson may designate;

Was the minister correct when he told us that it was inappropriate for him to initiate a meeting with the chair, given section 102 of the Patent Act?

[Douglas Clark]

I think the minister was improperly briefed.

[Don Davies, NDP, Vancouver Kingsway, BC]

Okay. Thank you.

The minister admitted to this committee on Thursday that he hasn't engaged in those consultations that he apparently requested to be suspended, the consultations with the PMPRB about the guidelines, to this day, and this is over five months after he wrote his letter. What is your take on that?

[Douglas Clark]

Well, I think the first and most important point is that it's not his place to consult his provincial counterparts on our guidelines.

Again, that's—