National Defence Committee on Feb. 4th, 2013

[The Chair, Conservative, James Bezan]

Good afternoon, everyone. We're going to start meeting number 63 and continue with our order of reference from Wednesday, December, 12, to study Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

Witnesses joining us for the first hour are, from the Office of the National Defence and Canadian Forces Ombudsman, Pierre Daigle, who is the ombudsman, and his acting director general, Alain Gauthier.

Mr. Daigle, you have the floor for your opening comments. Then we'll move right into questions and answers.

[Pierre Daigle, Ombudsman, Office of the Ombudsman, National Defence and Canadian Forces Ombudsman]

Mr. Chair, I would like to begin by thanking the committee for inviting us to testify today in its study of Bill C-15. As you mentioned, Alain Gauthier is my director general of operations.

Although not cited in the National Defence Act, the office of the ombudsman was established in June 1998 to help increase transparency in the Canadian Forces and the Department of National Defence and to ensure fair treatment of concerns raised by members of Canada’s defence community. This community includes members of the Canadian Forces, both regular force and reserve force, civilian DND employees, family members, and anyone in the recruitment process.

The ombudsman draws upon his or her powers from a ministerial directive and reports directly to the Minister of National Defence. The ombudsman operates independently of both the Department of National Defence administration and the Canadian Forces chain of command. The office of the ombudsman remains neutral and is an objective sounding board, often acting as both mediator and investigator.

Stated simply, the office has a mandate to investigate and make recommendations to improve the overall well-being and quality of life of the members of the defence community. While our investigators attempt to resolve complaints informally and at the lowest level possible, some complaints require thorough investigation leading to a formal report with findings and recommendations that are made public.

Over the past 15 years the ombudsman’s office has helped more than 21,000 individuals navigate existing channels of assistance or redress when they have had a complaint or concern.

In February 2011, I appeared before this committee to discuss the findings of my 2010 report entitled, “The Canadian Forces Grievance Process: Making It Right for Those Who Serve”. The report highlighted deficiencies in the grievance process that are causing further hardship for Canadian Forces members who have already been wronged.

At that time I testified that we found the redress of grievance process to be flawed and unfair. It is supposed to provide soldiers, sailors, airmen, and airwomen with a quick and informal mechanism to challenge Canadian Forces actions and resolve matters without the need for courts or other processes. Specifically, we determined that the chief of the defence staff, who is the final decision-maker in the grievance process, does not have the authority to provide financial compensation to fully resolve unfairness.

Moreover, when claims are rejected—which is often the case—Canadian Forces members are informed that they must initiate legal action against the Government of Canada in order to obtain compensation. However, unbeknownst to most men and women in uniform, legal action will rarely be heard by a court because previous courts have ruled that there is no legally enforceable employment contract between the Crown and Canadian Forces members.

Our findings were consistent with those of both former Chief Justice Lamer, who in 2003 recommended that the chief of the defence staff be given financial authority to settle financial claims in grievances, and former Justice LeSage, who indicated in 2012 that the issue should be addressed in legislation.

The Minister of National Defence expressed his commitment to providing the chief of the defence staff with the financial authority to resolve grievances and was looking at mechanisms to achieve the result. Short of Justice LeSage’s recommendation to address this issue in legislation, a resolution is not obvious.

The minister advised me in a letter on July 26, 2012, that Treasury Board approved the authority for the chief of the defence staff to make ex gratia payments in the grievance process. Minister MacKay said this was an initial basis from which to address my recommendations.

Ex gratia payments have significant limitations in that they are prohibited by Treasury Board policy from being used to fill perceived gaps or limitations in existing acts, policies, or other governing instruments.

In closing, I would reiterate what I said when I testified before this committee in 2011. The Canadian Forces redress of grievance process will remain flawed and unfair as long as the final decision-maker in the Canadian Forces grievance process, the chief of the defence staff, lacks the authority to provide financial compensation to resolve unfairnesses.

Mr. Chairman, I’m happy to answer any questions you may have at this stage.

[The Chair, Conservative, James Bezan]

Thank you very much.

I appreciate those opening comments. You've given us more time for questions and answers, since you were brief in your opening comments.

With that, Mr. Harris, you have the first seven minutes.

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

Thank you, Chair.

I'd like to acknowledge the presence of Laurie Hawn at the committee. He's been here before dealing with this matter. Welcome to a “new old-comer”.

Thank you, Mr. Daigle, for your appearance here this afternoon. I know that you and others, going back to Justice Lamer, at least, in 2003, all recommended that there's a serious problem with the actual ability for delivery of the benefits of a grievance to a member because of the second stage. In some cases, members have actually had to file a lawsuit against the government to get money that they were found to have been owed.

I am going to give you a copy of an order in council dated June 19, 2012, in both official languages. I have copies for all members of the committee.

This order in council gives authority to the chief of the defence staff to make an ex gratia payment where a final decision is made under the grievance process established under the National Defence Act.

I note two limitations there. One is that the payment can only be made for something that had already been decided on the day of coming into force of this order in council. The other is that the payment is subject to any conditions imposed by the Treasury Board.

I want to ask you whether you think that will help in any way the people who have outstanding grievances and need for redress.

[Pierre Daigle]

Effectively in our report in 2010, we did recommend that the chief of the defence staff be given financial authority to address financial compensation. But we also recommended that the Canadian Forces should look at the past to address those who at that time were not fully satisfied, within their grievance, when there was a financial compensation attached to it. There were some people who came to our office who we kind of held in abeyance waiting to see the changes. Our recommendation was it should be a bit retroactive, it should look back at all those who had been affected by this particular issue. This is one thing.

The other thing, as you mentioned, is that the power to authorize a payment is subject to any conditions imposed by the Treasury Board. It was, in our view, in our reading, the assessment of Chief Justice Lamer that the CDS be given full final authority to address this. By giving the chief of the defence staff an ex gratia authority, this ex gratia payment under Treasury Board directive specifically said, and I have the more complete—

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

Have you seen any conditions that Treasury Board has in fact imposed?

[Pierre Daigle]

I didn't see any figures from Treasury Board, but it says that an ex gratia payment is subject to any conditions imposed by the Treasury Board. It is clear, when you look at those conditions, as it states here, that this directive of ex gratia is not used to “fill perceived gaps or compensate for the apparent limitations in any act, order, regulation, policy, agreement or other governing instruments”, if, for example, a particular subject is governed by another instrument, and so on and so forth.

We are of the opinion that the fact is that ex gratia is subject to conditions, and those conditions are that the chief of the defence staff will not be able to fully compensate someone who has been wronged financially, if it is felt that it will fill a gap that already exists in an existing law or instrument.

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

One of the outstanding matters that has become public in the last little while, and you yourself have had something to say about it, is the home equity assistance program. Many have gone to final grievance, and I understand that some 140 people have been denied compensation.

Many of them are before June 19, 2012, and may also be subject to a Treasury Board guideline, so this order in council won't help them at all, as far as I understand it.

[Pierre Daigle]

I'm afraid not. The home equity assistance program, which is a separate issue, was established by Treasury Board in the 1990s. For people who are incurring additional costs based on their move within Canada, if they're claiming additional financial costs, it is still subject to Treasury Board. Since an ex gratia carries a condition that it should not be used to fill a gap, I would assume that this will not give full resolution to the member either.

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

Are you aware of whether or not expenditures are being made under this order in council since last June?

[Pierre Daigle]

Not that I remember, no.

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

In terms of resolutions, you're not aware of that?

[Pierre Daigle]

For the home equity assistance?

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

No, for any.... The recommendation being that for grievances that involve a monetary award, the CDS now has authority, are you aware of that authority being used to make sure that monetary payments are being made since this order in council was put in place?

[Pierre Daigle]

Personally, no.

If you would allow us, maybe my director general of operations, who's dealing with those cases individually, is aware of it.

[Alain Gauthier, Acting Director General, Operations, National Defence and Canadian Forces Ombudsman]

No, at this time we haven't seen or received any report of the ex gratia being used, but my understanding is that perhaps the CDS will appear and will probably be in a better position to answer this question.

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

Thank you.

I have 30 seconds. I take it you probably dealt with this in your opening remarks, but what about your status as an officer reporting to the minister? What would you prefer to see?

[Pierre Daigle]

Well, as I said, we're not cited in the National Defence Act. Obviously, since 1998, the year we were created, my predecessors have made many attempts to legislate the office of the ombudsman. We are fully independent from the administration of DND and the Canadian Forces chain of command.

Within my ministerial directive, I might be called on to review the process of the Canadian Forces grievance process, and I might be called on to review the process of the Military Police Complaints Commission. Both bodies are part of the National Defence Act, but at this stage the office of the ombudsman is not part of the act.

[The Chair, Conservative, James Bezan]

Thank you very much.

We'll move on.

Mr. Hawn, you have the floor.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Thank you, Mr. Chair. It's good to be back to discuss Bill C-15, or Bill C-41, C-45, or C-7, whatever it is in the latest iteration.

[John McKay]

Or Bill C-35.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

Whatever it is, thank you to the witnesses for being here.

Mr. Daigle, in your report that you've referenced—in fact, I was at that meeting when you did brief us—Chief Justice Lamer and the CDS said that the CDS should have the authority to grant financial compensation. We've talked about that.

You referred to a previous statement of the Minister of National Defence in his July 12 letter to you committing to take action on that. He did outline that after nine years of not a lot of progress in that area, the minister did get approval from Treasury Board last June, such that the CDS could make ex gratia payments. There's a commitment to revisit that after a year.

We do agree that obviously everybody would like to see all things move a lot faster than they do, but a lot of these issues are sensitive, and not necessarily simple. Would you agree this is a step in the right direction and that we do need to embark on these things with some sensitivity to the complexity of the process?

[Pierre Daigle]

When the minister advised us in writing in July about the ex gratia, I did reply to the minister in August saying that I still have strong concerns about the perceived resolution, one being the ex gratia, because it will not give full satisfaction to any grievance, and the other one being the retroactivity of it.

When the minister replied to my August letter, he did mention that the limitation was a bit unexpected and that this is an initial basis to move forward from. This was decided in 2003 by a former chief justice of the Supreme Court of this land, followed in 2012 by a provincial chief justice, who both said that this should be giving full authority to the Chief of the Defence Staff. I do not believe that an ex gratia will achieve that, with the Chief of the Defence Staff being the final authority for a grievance. In fact, he doesn't have final authority if he's not able to compensate fully for what has been wrong.

[Laurie Hawn, Conservative, Edmonton Centre, AB]

But as the minister said, it's an initial step. Do you agree that this is at least a step in the right direction? Also, when you talk of retroactivity, what are you defining that as? Is it a period of time? How do you define retroactivity? How far back?

[Pierre Daigle]

Again, it's an initial step which means to me that this ex gratia payment might still be the subject of debate. As I said, it will not achieve what it was intended to achieve. Definitely, it's always good to see that things are moving after 10 years, and hopefully we'll get final closure of it.