Natural Resources Committee on Dec. 7th, 2009

[Brenda MacKenzie]

Yes, I'll start off at the bottom, which is to just be heard by a claims officer. We anticipate that a lot of claims will be just like each other. Suppose there are 200 claims, and they are the same kind of claim. We anticipate that it would be easier for everybody if they could just go to a claims officer and get it all dealt with in a consistent manner. This is structured so that there's basically an automatic right to go up the line, if you're unhappy, to get a more fulsome process, the full-scale process, which would be a panel of three.

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

Again, that decision is implored upon the panel. Can the chairperson or somebody else judge whether an appeal is worthy or not, or does that appeal simply have to be heard, according to subclause 56(1)? Do you follow my meaning?

[Brenda MacKenzie]

Yes.

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

Someone's unhappy because they had a similar claim to somebody else before and after them in the line. They want the full panel to hear their case. Is the tribunal implored to do it?

[Brenda MacKenzie]

The tribunal would almost certainly allow the appeal to be heard by a panel of three. The appeal lies to a panel of three. So what we have here is your really quick process with the claims officer. It might go to a panel of one. The chairperson has the authority to put it directly to a panel of three if it's likely to be a complicated matter.

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

I also heard in your answer that the tribunal can refuse an appeal.

[Brenda MacKenzie]

The implication here is that the appeal will be heard. The appeal is to be heard and decided by a panel consisting of three other members.

“[...] l'appel est entendu et jugé par une formation constituée de trois autres membres.”

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

Do the French and English read the same?

[Brenda MacKenzie]

Yes.

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

You're reading subclause 56(2) as imploring the panel to hear the appeal.

[Brenda MacKenzie]

It is set up in such a way that it does implore the panel to hear the appeal.

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

Thank you. That's what I'm looking for.

[Brenda MacKenzie]

Yes. It is very unlikely that somebody who's aggrieved would not be able to get all the way to the top in the administrative appeal process here, unless it's just frivolous or vexatious--as we took care of earlier.

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

In subclause 56(3) there's something about hearing additional evidence on this appeal. In exceptional circumstances it's noted that more evidence can be brought. If somebody goes before one of these lower-form elements of the tribunal, is unsatisfied with it, finds more evidence, and gets another doctor's note, is that all considered exceptional evidence? Would the tribunal say, “I'm sorry, you didn't do your job in coming to the first one. We won't see your appeal. We see this as potentially vexatious”?

[Brenda MacKenzie]

Again we have left it to the good wisdom of the retired judges who are dealing with it. The qualifier is whether it's essential in the interests of justice to do so. An appeal is normally dealt with on the facts that have already been presented. But we have allowed here that perhaps people will find out something different, or they might have something else to bring that would, to a fair-minded person, result in a different conclusion. So the tribunal is given the discretion to do this.

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

A lot rests on the judge, obviously, because that's the way the tribunal is established. But there was nothing earlier on the judge's own experience, potential bias, or interest. The current or ex-judges are simply appointed by cabinet. The act itself, Bill C-20, allows the judge quite a bit of discretion to determine what's vexatious and what's not.

Imagine the public having a concern if a judge had previously been a lawyer, had worked for one element of the nuclear industry, became a judge, and was appointed to this because of their experience. But the act leaves so much available to the judge to decide. This could involve many millions of dollars and be quite important. There's no direction given on discretion, if you follow my meaning.

Is that because it's impossible to guide the government that way? You have a judge who worked 20 years as a lawyer for part of the nuclear industry and ends up becoming a judge. Then 10 or 15 years later he's appointed to a tribunal as a retired or sitting member of the bench. Now the public has to come before a judge who used to litigate on behalf of the nuclear industry.

[Brenda MacKenzie]

That's a very interesting question. The tribunal members are appointed on good behaviour. An actual bias in fact is bad behaviour.

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

One would hope so.

[Brenda MacKenzie]

The clear understanding is that a biased judge is a bad judge, so that's simply not acceptable if you're establishing an independent and impartial tribunal.

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

Thank you.

[The Chair, Conservative, Leon Benoit]

Shall clause 56 carry?

(Clause 56 agreed to on division)

(On clause 57--Judicial review)

[The Chair, Conservative, Leon Benoit]

We're now on clause 57. Is there any discussion on clause 57?

Go ahead, Mr. Cullen.

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

This clause says that everything that gets decided is final. Does that include Parliament, or can Parliament overstep a final judicial decision? Especially when a group of compensation packages has been allotted, could Parliament override clause 57 if the broader public and therefore their elected members felt that it wasn't fair compensation?

[The Chair, Conservative, Leon Benoit]

Ms. MacKenzie, go ahead.

[Brenda MacKenzie]

The point of control is in the general law-making process, which we'll be looking at later in clause 67, which allows the Governor in Council to make regulations, which are subject to comment by parliamentarians, of course. It sets out the rules, as does clause 68 as well, which deals with priorities for classes, voting claims on a pro rata basis, and so on, but that's not overturning a decision; that is setting out the ground rules for the way decisions in general are dealt with.

Does that answer your question?