Natural Resources Committee on Dec. 7th, 2009

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

We talked earlier about the sort of triage nature of this in trying to get money to the people who need it most. Is the judge's determination of all claims not affected by whether Parliament has set aside additional funds?

So if a judge going into this tribunal knows that $650 million is the limit—Parliament has not given over any more—and they've got 650 claimants, to pick a number, it's going to affect their decision rather than hearing that Parliament has set aside additional money. Is it not going to affect the amount they allow per claimant, with that interest being not to have anybody at the very end of the line not get any money at all?

[Dave McCauley]

That's correct. Going into this, the tribunal must realize that it has $650 million to use to compensate victims. It has by regulation certain abilities to pro-rate expenses, to not pay certain damages, etc., in order to maximize that $650 million or to triage it, as you indicated.

Should the Governor in Council appropriate additional funds for the use of the tribunal to compensate victims, then it can reassess or compensate again individuals who have already been compensated, with the additional moneys.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

What's strange about this process, in a way, is that if in a normal court of law a judge deems you are owed damages of $100,000, then that's what's dispensed, barring any appeal. But in this case, one can foresee the judge deeming they are owed $100,000, but with the budget they have they are only giving $50,000, and if Parliament gives more money they'll give another $50,000. Do you see what I mean? The effect on the decision is determined by the amount of money available, and because the limit may be reached, it's changing the nature of the judges' treatment of a petitioner, of someone coming before the tribunal, in terms of the money allowed. A person comes forward and says they believe they are owed $1 million and the judge tells them they probably are, but there are so many claimants and the initial report said they were going to blow through the limit right away, and the judge awards them $500,000 but tells them, if Parliament decides there is more money, the tribunal could come back and give them more money. Is that right?

[Dave McCauley]

That's correct.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That's a little strange, is it not?

This is what the judge believes you're owed, but it's limited by this. Then you have this interplay between Parliament and this tribunal, where the tribunal is in effect saying it doesn't have enough money to compensate this, as it's gone through these cases and heard they're more complicated and there's more money required.

[Dave McCauley]

But the alternative would be that if you had left the issue fully with the courts, the courts would deal with the claims on a first-come, first-served basis. Then that would not serve the bulk of the victims. I would expect, rather, that who can be first across the line would be compensated.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

It's a very Canadian response in trying to make sure it's as fair as possible to everybody and not just who's got the quickest lawyer.

But the notion is also that the judge's decision on compensation is being affected by this clause, in the sense that they know hanging out there is the possibility of this Parliament or a future Parliament making a decision to offer up more money and then doing what the tribunal actually wanted to do in terms of compensation levels. Do you follow me?

I understand the intention of having everything come together and allowing people some sort of fairness in what happens. But around the money question...

[Dave McCauley]

The issue, though, is that it's not really any different from any other administrative tribunals that adjudicate very large losses and large damage situations.

[The Chair, Conservative, Leon Benoit]

Ms. MacKenzie, do you have something to add?

[Brenda MacKenzie]

Just on David's point, that's correct. We did think about that. In any claim before any court, any private claim, the amount you can get depends on how deep the pockets are of the person you're claiming from.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

That's understood, but we don't know how deep the pockets are. I suppose that's what we're hearing in this. We know there's at least $650 million, but there may or may not be more. So we have the potential of this process going quite a bit longer, depending on whether Parliament hears the will of the chairperson or is paying enough attention to realize, “Goodness, $650 million is not going to do it; we're going to need more.”

I understand that if someone is seeking damages from some company and the judge determines that the company has only $1 million in total assets, that's probably the natural limit that they can go to. Their insurance isn't going to get them any more, so the judge fines somewhere in the range of $1 million, if that's the maximum he or she wants to give.

But on this one, there are two maximums. There's $650 million, but then there's this unknown question mark, depending on what Parliament decides. I just see an interplay between the pressure of the tribunal and the public pressure on Parliament being what actually ends up compensating folks, as opposed to some natural course and limit.

If Parliament simply decides that because it's a non-election year they're not going to compensate any more, then tough luck, and folks are out money that there might otherwise have been. It's something that the judge probably acknowledges and says, “You're probably owed more money, but the election isn't for three years, and you're not going to get any.”

[The Chair, Conservative, Leon Benoit]

Ms. MacKenzie.

[Brenda MacKenzie]

The limit here is $650 million, because that's all the legislation provides for.

You're right, the scheme is a little bit different, because normally once you've awarded money, that's it; it's all over. We have provided for something a little special. We have allowed the tribunal to go back, and if they've awarded, say, 80% of a particular class of claim to all the claimants—and it might not even be as a result of Parliament awarding more money but because they discover that they didn't use up all their money—they may decide to come along, and in fairness, award another 10% to that class of claimant that was shortchanged.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

What you're imagining, then, in this special clause is almost a situation where a judge would say, “Here's your compensation amount, but come back for more, because we've only given you 50% or 80% of what we deem you to be owed because we're concerned about the total amount. We have only $650 million to work with, as far as we know. Maybe there's more coming. Maybe we won't run out. Maybe there'll be fewer claimants than we suspected.”

Do you imagine the judge giving those types of compensation statements?

[Brenda MacKenzie]

Yes.

Go ahead.

[Dave McCauley]

The accounting of the payments is done exactly to reflect that. The tribunal judge will make a decision as to how much compensation would be available. There would be a reduction based on the regulations provided, to reflect, for example, that a particular payment was being made at 50% of the dollar, and then there would be an amount paid out. That information would be provided to the victim. If further moneys were appropriated, there would be the possibility of these victims returning to the tribunal and seeking additional compensation.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Where's that?

[The Chair, Conservative, Leon Benoit]

Ms. MacKenzie, did you want to add to that?

[Brenda MacKenzie]

I have just one clarification.

The tribunal determines what the damage is, as any judge would. The second determination is how much money there is. It's a two-step process.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

In terms of that instruction, Mr. McCauley, you said in the last piece that the judge can issue a statement that essentially says, “The total claim might be such-and-such, we're giving you a percentage to this limit, and then we might come back.” Is that essentially what a judge might rule?

[Dave McCauley]

Clause 54 provides the notification that is carried out by the tribunal. They decide an award in respect of the claim in subclause 54(2), and the notification is sent to the minister indicating the award and any reductions prescribed by regulations concerning any amounts already paid with respect to the claim in accordance with the act. Then the payout is done by the minister from the funds.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

What you're imagining in subclause 54(2) as it applies to this particular provision is that the judge would send a notice to the minister on each individual claim, saying, for example, “Dave So-and-so got $100,000 in the claim, and we gave him $80,000 subsequent to there being enough money or more funds made available.”

Is that a notice you would see from the tribunal judge under subclause 54(2)?

I didn't read subclause 54(2) that way at all, but you're saying it could be used that way.

[Dave McCauley]

It's an accounting of the decision. So it's a pure accounting.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

And in that accounting—

[Dave McCauley]

It's columns, columns, columns. This is the payment.