National Defence Committee on March 7th, 2011

[Claude Bachand, Bloc, Saint-Jean, QC]

If the Chief of the Defence Staff regularly delegates his responsibilities to an officer, I think that the officer must regularly report to the Chief of the Defence Staff on the powers, duties or functions that have been delegated.

So, in clause 9, I would add a new subsection (2.1) requiring the officer to regularly report to the Chief of the Defence Staff on the exercise of any powers, duties or functions delegated to him or her under subsection (1).

[The Chair, Conservative, Maxime Bernier]

Great. Thank you.

Mr. Wilfert.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

We could support the amendment, except for (1.4) and (1.5). We have concerns about them, on the basis that as long as serious crimes can still be tried by summary trial, I don't think we can support a blanket amendment to remove those convictions.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

You're on the wrong one.

[The Chair, Conservative, Maxime Bernier]

We're on BQ-7 right now.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

That's BQ-7.1, sorry. We don't like that either, just so you know. So I won't repeat myself when I get there.

[The Chair, Conservative, Maxime Bernier]

I give the floor to Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

BQ-7 formalizes what is actually happening already, so we have no problem with it. We support that amendment.

(Amendment agreed to)

[The Chair, Conservative, Maxime Bernier]

We are now going to vote on clause 9.

(Clause 9 agreed to as amended)

We now move to new clause 9.1.

We have amendment NDP-2.

Jack Harris, you have the floor.

[Jack Harris, NDP, St. John's East, NL]

My amendment is essentially designed to fulfill recommendation 74 by Chief Justice Lamer. This is of course because of the long-standing concerns about the length of time the grievance process was taking. It was a significant concern for people in the military who had a grievance. They were automatically put on the long finger, as it used to be said at one time, and they didn't get their matters dealt with.

I know significant efforts have been made, and we've heard about them. The grievance board representatives talked about how they've improved their procedures. Everybody has been talking about how they've been working very diligently to try to get these matters dealt with.

Frankly, the length of time it takes to do these things can be affected by the amount of resources put in to allow for this. If Justice Lamer felt that 12 months was a drop-dead date for the resolution of what are, for the most part, basic matters, then a way should be found to have these decisions made within 12 months. This amendment seeks to implement the recommendation that Justice Lamer made eight years ago.

I don't need to say much more than that. We did hear from witnesses about the consequences of delay, the effects on morale. These are what would normally be regarded as employment types of grievances, and 12 months, frankly, is a fairly lengthy period of time.

Granted, they may have to gather evidence from here and there. But the military has a terrific way of communicating; they have their own communications systems. If they were to devote the resources to this in the human resources department or the grievance section, then they should be able to meet that timeline. This would allow for a remedy for people who weren't getting their grievances heard within what's considered to be a reasonable period of time.

I think we should support it.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Before we continue, I would like to clarify something, Mr. Harris.

I think there is a clerical mistake in your amendment, NDP-2. It's in the French, in proposed subsection 29.151(3), at the bottom of the page.

As it stands, it is “les dépens au tarif des frais”.

It must be “les dépenses”, so you must add “es”. That will make it the same thing in French and in English.

I'll give the floor to Mr. Hawn.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair.

It's a nice goal, and everybody wants the system to move faster, but we have some significant problems with the amendment as written. In fact, I don't think it's going to make the process any more expeditious. More fundamental is that in proposed subsection 29.151(3), we say “The Federal Court shall award”. We can't tell the Federal Court what to do.

The other impact is that if we were able to tell them what to do, we would burdening the Government of Canada to fund that. It says “regardless of the outcome of the application”, so even if it were a frivolous claim or a claim without merit, we'd be putting the Government of Canada on the hook to fund that solicitor-client cost, or the court cost. That doesn't simplify it; in fact, it makes it more complicated.

Beyond that, Mr. Chair, and to our legislative clerk, I would submit that this is outside the scope of the bill because we would be amending the National Defence Act, not Bill C-41.

[The Chair, Conservative, Maxime Bernier]

Mr. Wilfert.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Chairman, we tend to support the comments of Mr. Hawn. But I wonder if I could ask for Mr. Gleeson's comments on proposed amendment, NDP-2.

[Col Patrick K. Gleeson]

Mr. Chair, I'll ask Colonel Gibson to respond to this for Mr. Wilfert.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Thank you.

[LCol Michael R. Gibson, Director, Strategic Legal Analysis, Department of National Defence]

Thank you, Mr. Chair.

We would consider that the committee should be aware of four significant concerns with this particular amendment as drafted. First of all, there is the issue of purporting to prescribe a hard and fast twelve-month deadline. Clearly that was the goal both of Justice Lamer and of the department, but one should be very careful, one would suggest, when prescribing in law a hard and fast deadline. But that's a policy judgment for the committee to make. However, there are I think a number of technical issues that the committee should definitely be aware of.

The second concern is that this is obviously meant to address the issue of delay. However, the committee should be aware that under the regulations prescribed, if a member chooses to take their grievance to another forum, for example, the Federal Court, that has the effect of suspending consideration of that grievance pending the outcome of that other process. If the goal of this is actually to expedite the consideration of grievances, that goal would not actually be achieved, because the Federal Court itself, of course, has a significant docket. There is a significant delay in actually getting a matter before the Federal Court, which we understand to be something in the order of fourteen months. So actually the practical effect of doing this wouldn't be to achieve the goal sought.

The third concern we have is that it prescribes costs on a solicitor-client basis regardless of the outcome. The members of the committee who are lawyers would of course be aware that there are a number of different tariffs, and solicitor-client costs are generally only awarded in cases where the court wishes to convey a punitive message. So that's a consideration.

Perhaps very significantly, the fourth concern is that this doesn't actually accord with the Lamer recommendation in the way that he made it. What Chief Justice Lamer said was that a griever should be entitled to his costs. In other words, those costs would be subsidized or paid for by the crown. But the amendment on its face says “the Federal Court shall award”, which we would suggest might actually engage some significant considerations about infringement on judicial independence of the Federal Court.

So taken all together, those are, I believe, some significant concerns with this amendment as drafted, which the committee should be aware of.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Colonel Gibson, thank you for that.

[The Chair, Conservative, Maxime Bernier]

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

I guess to paraphrase Mr. Hawn, I have a great deal of respect for Chief Justice Lamer. He certainly made it clear that he thought a twelve-month period was reasonable.

With regard to the technical side, I have two technical questions. A hard and fast deadline is a deadline after which an individual who thinks the delay has been unreasonable--and there's no excuse for it, let's face it, because nobody goes to the Federal Court without a lawyer. So presumably someone is going to say to the department, “Look, my grievance has not been settled and it's been over a year. It's been a year and a half now and it still isn't settled. What's going on here? Can you give me a time when it's going to be resolved?” From a practical point of view, nobody is going to rush off to the Federal Court on day one after the twelve months.

Secondly, I don't agree, frankly, that there is any automatic suspension of an ongoing matter by virtue of an application to the Federal Court. It's not the case with arbitrations. It's not the case even with orders of a labour relations board, for example. There's no automatic suspension of an existing action or decision unless the court gives such an injunction. So I don't happen to agree with that in law. But as for a hard and fast deadline, it's not really hard and fast except that it gives rise to the right to go to Federal Court.

In terms of an application, it's going to be an interlocutory application, something that's heard. It's not going to be something that has to find time on the docket, applications for injunctions, or other things like that, which are heard fairly immediately, and there's no reason, in my view, why this wouldn't happen.

As regards a technical objection--and I hear what Colonel Gibson has offered there, and Mr. Hawn has made the same point--perhaps the wording here is not in accordance strictly with what Chief Justice Lamer had said, and I would submit a minor rewording of that, which says, “that any officer or non-commissioned officer who makes an application under subsection (2) shall be entitled to his or her costs before the Federal Court on a solicitor-client basis regardless of the outcome of the application.” So I think Colonel Gibson is right, that to order the Federal Court through legislation to award them is probably not appropriate, but to reword that in a minor way to deal with an objection would be consistent with what Chief Justice Lamer had said and would still be acceptable, in my view, as a piece of legislation.

And as far as it being outside the scope goes--and Mr. Hawn made that argument--this has been through the procedural officer of the House, who has not made any objection of that nature. The procedural clerk has not provided any objections to this particular piece.

[The Chair, Conservative, Maxime Bernier]

Thank you.

I will give the floor to Mr. Dryden.

[Ken Dryden, Liberal, York Centre, ON]

I think perhaps Colonel Gibson is going to do what I was going to ask if he would do. Could you respond to Mr. Harris' comments?

[LCol Michael R. Gibson]

Thank you, Mr. Dryden.

There are two further points in response to the concerns raised by Mr. Harris that we would consider the committee should be aware of. In fact in the regulations--the Queen's regulations and orders, which prescribe the regulations with respect to the grievance system--there is a specific provision that provides that the consideration of the grievance would be suspended pending a determination of the process in the other forum.

The second issue, of course, is when one considers what you would be going to the Federal Court to do; one would be making an application for judicial review pursuant to section 18 or 18.1 of the Federal Courts Act. That's a consideration for a request for that court to consider a decision made by a federal board, commission, or tribunal.

In this case, since there wasn't a decision, presumably the only relief the Federal Court could grant in that circumstance would be an order to get on with the process. So in other words, once again, the remedy or relief sought wouldn't actually be accomplished by this mechanism.

[The Chair, Conservative, Maxime Bernier]

Thank you.

Concerning the question raised by Mr. Hawn about the receivability of this amendment, yes, it is receivable because it's a new clause that is in line with the bill generally. So that is the decision of the chair.

Let's call the question on NDP-2.

(Amendment negatived)

(Clause 10)

Now we move to clause 10.

There's no amendment on clause 10.

(Clause 10 agreed to)

(On clause 11)

We have amendments from the NDP. The first one is NDP-3.

Mr. Harris.

[Jack Harris, NDP, St. John's East, NL]

NDP-3 reflects some of the concerns that were raised in particular by the chair of the grievance board. We had a discussion about the composition of the grievance board. I have to say my initial view was that this should be a civilian board totally, and I suppose along the same kinds of lines that someone outside the military should be deciding this on general principles of what might be considered to be employment law or entitlement for employees who in this case don't have the right to unionize. But I was persuaded by what I heard, that it doesn't hurt to have people who understand the military and the idiosyncrasies of how things get done, and that it does take a little while for people to understand how it works.

There was some suggestion as well from the chair of the grievance board that even though it was permitted by the act for serving members to be appointed to the board, he didn't think it was desirable. So NDP-3 actually incorporates both of those ideas, and I'm told by the legislative clerk that the rest of these items, 4, 5, 6, and 7, are consequential on the first. We're not talking about them all now, but I don't want to re-argue each one. If one fails, they all fail.

The point here is that I don't believe that serving members of the military ought to be on the grievance board--I think there probably are now some seconded, I'm told--and that at least 60% of the members of the grievances committee ought never to have been a member or a non-commissioned member. In other words, as much as 40% would have a military background and they could bring that experience to the board, but the majority ought not to have been either an officer or a non-commissioned member of the force. That's my amendment. I guess there's not much further to say about it. The arguments were made essentially before the grievance board.