Public Accounts Committee on Nov. 17th, 2016

[The Chair, Conservative, Kevin Sorenson]

Good afternoon, everyone. Welcome.

It's Thursday, November 17, 2016, and this is meeting number 33 of the Standing Committee on Public Accounts.

I will remind everyone, not only committee members but those in the audience as well, that we are televised today, so if you wouldn't mind, please mute your phone, put it on vibrate, or shut it right off. Otherwise, we have larger hammers than this to shut them off for you.

I want to advise the members of Parliament on our committee that the Auditor General has offered to provide this committee a special briefing between 10 o'clock and 10:45 on Tuesday, November 29, immediately following the lock-up session with all parliamentarians. We have already extended our thanks to him and accepted the offer, so we should be prepared for that as well.

Today we are considering report number three of the spring 2016 Reports of the Auditor General of Canada. Report number three is an audit of the Governor in Council appointment process in administrative tribunals. We have a number of witnesses appearing before us today, who are here to answer questions from our committee.

From the Office of the Auditor General of Canada, we welcome Mr. Michael Ferguson, Auditor General of Canada, and Sharon Clark, principal; from the Privy Council Office, Janine Sherman, deputy secretary to the cabinet, senior personnel and public service renewal, and Donnalyn McClymont, assistant secretary to the cabinet, senior personnel secretariat; from the Department of Indian Affairs and Northern Development, David Dendooven, the corporate secretary, and Stephen Gagnon, director general, specific claims branch; from the Department of Public Safety and Emergency Preparedness, Jean Cintrat, director general, cabinet and parliamentary affairs and executive services directorate; and, from the Department of Industry, Shelley Dooher, corporate secretary, office of the corporate secretary.

We'll begin by inviting our Auditor General to please give us his comments.

Welcome.

[Michael Ferguson, Auditor General of Canada, Office of the Auditor General of Canada]

Mr. Chair, thank you for this opportunity to present the results of our audit on the Governor in Council appointment process. Joining me at the table is Sharon Clark, the principal responsible for the audit.

In May of this year we presented for tabling an audit report that examined the process used for Governor in Council appointments. This recruitment process is separate from the one that the federal public service uses to appoint public servants. Work on this audit was completed in February 2016, and we've not audited actions taken since then.

The focus of this audit was to determine whether departments worked with the Privy Council Office to ensure that timely appointments of qualified individuals were being made to selected administrative tribunals to maintain continuity of service. We also assessed progress on some of the areas for improvement identified in our 2009 audit of the appointment process. These included the guidance provided by the Privy Council Office, the number and length of vacancies, and the notice given to appointees concerning their reappointments.

In the recent audit, we focused on administrative tribunals that have a direct impact on Canadians. We looked at the roles played by the Privy Council Office, by selected administrative tribunals, and by the departments reporting to the ministers responsible for those tribunals. We did not audit the appointment decisions or the roles played by ministers, ministers' offices, or the Office of the Prime Minister.

This audit is important because administrative tribunals regulate specific areas of the law or provide individuals with a way to appeal the government's decisions, such as those on immigration status or first nations claims. Appointments to these tribunals must be timely to ensure that the tribunals can carry out their work. Appointees must also have the right background and experience to carry out their roles effectively.

In our 2009 audit, we found a lack of guidance on the appointment process and lengthy delays in making some appointments to small entities and crown corporations.

We've found that since that audit, the Privy Council Office has issued guidance and information to ministers, departments, and tribunals on vacancies and on steps in the appointment process; however, this guidance was not accessible on the Privy Council Office website. The guidance also didn't address exceptions to the process, such as the appointment of judges to tribunals.

We also found that many key positions weren't filled for long periods. These delays affected decision timelines for tribunals, which in turn affected individual Canadians and other stakeholders. For example, at the Immigration and Refugee Board of Canada, the average time to process immigration appeals grew from 10 months, which we reported in our 2009 audit, to 18 months. Given the importance of the work these tribunals perform, these delays and the resulting backlogs are concerning.

Furthermore, we found that appointees weren't given sufficient notice of decisions on their reappointments. While this notice was more timely than what we reported in our 2009 audit, we found that it still didn't meet the requirement of six months' notice for reappointment of full-time appointees established by the Privy Council Office.

Finally, we found that, while the selection processes for chairs and other full-time appointees were open and transparent, the part-time appointments that we looked at were not. Candidates for part-time positions were not evaluated against established criteria. In our view, without a documented assessment, it is not possible to demonstrate whether the process results in appointees with the necessary expertise and skills. The Privy Council Office has stated that “making qualified appointments is the key to the achievement of the government's objectives and the strengthening of accountability”.

We are pleased to report that the Privy Council Office and the departments and tribunals included in our audit agreed with our recommendations and committed to take corrective action.

Mr. Chair, this concludes my opening remarks. We would be pleased to answer any questions the committee may have.

Thank you.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much.

We'll now move to Ms. Sherman, please, for her opening comments.

[Janine Sherman, Deputy Secretary to the Cabinet, Senior Personnel and Public Service Renewal, Privy Council Office]

Thank you, Mr. Chair and members of the committee.

I am pleased to be here today to also discuss the findings of the report of the Auditor General on the Governor in Council appointment process for administrative tribunals.

I think it would be helpful if I first take a few minutes to describe the appointments process. I would also like to take this opportunity to give you an update on the government's new approach to Governor in Council appointments and how that approach relates to administrative tribunals in particular.

In terms of the process and how it works, let me begin by noting that Governor in Council appointments are made by the Governor General on the advice of the Queen's Privy Council for Canada, as represented by cabinet. Ministers actively manage all the Governor in Council positions within their portfolios and the Privy Council Office provides operational support and non-partisan policy advice to the Prime Minister and to cabinet ministers. Appointments are made on the recommendation of the responsible minister to the Governor in Council. It is the process leading to that ministerial recommendation that is established by the Prime Minister.

On February 25, 2016, the Prime Minister announced a new approach to Governor in Council appointments, which requires open, transparent, and merit-based selection processes that will support ministers in making recommendations on high-quality candidates who reflect Canada's diversity in terms of gender, linguistic, regional, employment equity, cultural, and ethnic representation.

This approach applies to the majority of appointments to both full-time and part-time positions on commissions, boards, crown corporations, agencies, and tribunals across the country. It is the inclusion of part-time positions within an open, transparent, and merit-based approach that is the most significant shift in how appointment processes are now managed.

The government has made clear to us that communicating opportunities to Canadians is an important cornerstone of their open, transparent, and merit-based process. The Canada.ca website provides access to Governor in Council appointments information and to the Governor in Council appointments website where opportunities are advertised. In addition, appointment opportunities are advertised on the website of the organization filling the position and listed in the Canada Gazette while the application period is open.

To build broader awareness, positions may also be advertised in other media, for example, social media, online, and in newspapers.

In order to apply, candidates register and create an account for their GIC appointment applications on the GIC appointments website, where they will be able to apply for any of the opportunities that are listed.

To support the government's objectives around diversity, applicants are asked to provide information on their second official language proficiency and, if they wish, they are able to self-identify in their online profiles as members of an employment equity group, such as women, indigenous peoples, visible minorities, and persons with disabilities. Candidates may also choose to self-identify as members of ethnic or cultural groups.

Under the new approach, merit is being assessed through rigorous selection processes, with selection criteria that are public. These qualifications and criteria reflect the organization's mandate, taking into account as well the minister's mandate and the priorities established by the Prime Minister.

Let me spend a few minutes on the mechanics of the selection process.

PCO manages or participates in all selection processes. In each case, a selection committee is established. It reviews applications to ensure they meet the established criteria. The committee selects a short list of candidates for further assessment through interviews and written assessments as may be required. Candidates that the selection committee considers to be highly qualified for appointment also undergo formal reference checks to further assess personal suitability.

The committee then presents formal advice to the minister on the most qualified candidates for consideration. The minister then uses that selection committee's advice in finalizing his or her recommendation to the Governor in Council.

To support this new approach, the senior personnel secretariat at the Privy Council Office has been working closely with departmental contacts. Since the February announcement, we have undertaken a number of communication, outreach and information sharing initiatives. We held information sessions, in collaboration with the Prime Minister's Office, to provide guidance, information, and tools to departments and organizations and all ministerial office staff involved in supporting their ministers on the Governor in Council appointments. We will continue to collaborate and discuss best practices with these key stakeholders.

Our engagement efforts have ensured that ministers' offices and portfolio departments and organizations have the information they need to support their ministers in making recommendations to fill current and upcoming vacancies. We have shared materials on our GIC appointments website for all stakeholders and will continue to share materials on both internal and external websites as we implement new policy guidance and direction over the coming months. This sharing of materials is well aligned with the recommendations in the Auditor General's report.

Information sharing has been paramount during the transition to the new approach to Governor in Council appointments. An important area discussed with departments and agencies is exceptions to the new process, a point also raised by the Auditor General in his report.

Given the government's commitment to open processes, the vast majority of positions will normally be subject to a formal, advertised selection process. Exceptions need to be made for positions with requirements found in the legislation that establishes certain organizations.

For example, legislation may specify a Governor in Council appointee must be a sitting judge or a person nominated by a third party, such as a provincial or territorial government, a First Nation, or a user or other stakeholder group. We are not seeing many of these exceptions and, when they do arise, the Privy Council Office works closely with its partners to identify and verify the exceptions on a case-by-case basis.

It is also worth noting that during implementation of the new process, the government has decided to make appointments or reappointments to positions that are essential for the good governance or continuity of government business that may not include the full set of these new measures that were announced earlier this year. As these are transitional situations, such appointments or reappointments are generally for one year or less, subject to any legislative provisions. This transitional measure helps to ensure that organizations can continue to function and that services continue to be delivered to Canadians without interruption.

As I've noted, the changes to the appointments process are intended to contribute to the recommendation of high-quality candidates with a goal of better reflecting Canada's diversity. They also align with the recommendations from the Auditor General's report on the Governor in Council appointment process for administrative tribunals. The objective of the Auditor General's report, as my colleague has noted, was to determine if timely appointments of qualified individuals were being made to selected administrative tribunals to maintain the continuity of service to Canadians. My colleagues from other departments are here to answer questions related to specific recommendations made regarding the specific administrative tribunals that were examined, but I would like to take just a few more minutes to provide some context for their remarks by setting out a general overview of selection processes for administrative tribunals.

As for all Governor in Council appointments, with few exceptions, opportunities for positions in administrative tribunals are advertised publicly and candidates are invited to apply online. The exceptions are in the case of positions that need to be filled by sitting judges. The Privy Council Office works with the administrative tribunal and portfolio department to apply the spirit and intent of the new approach to help ensure that we meet the government's commitment to diversity. All selection processes for administrative tribunals follow the kinds of established selection processes that I mentioned earlier.

As part of this, PCO is working closely with four large administrative tribunals to implement measures to support enhanced consistency in the approaches undertaken to assess candidates for these very important decision-making positions. We intend to use the lessons learned and best practices from the large tribunals to identify ways that the efficiency and timeliness of selection processes for positions in the smaller administrative tribunals can be implemented.

Implementing this new approach has required capacity building within the Privy Council Office and within the departments and organizations that are responsible for supporting GIC appointments. We very much appreciate the advice of the Auditor General to help ensure the ongoing improvement of the overall appointment system, and we are committed to continuing to act on the Auditor General's recommendations as we work closely with partners to implement the government's approach to GIC appointments in administrative tribunals and other organizations across government.

In closing, as it is implemented, this new approach to GIC appointments is key to providing Canadians with an opportunity to be considered to serve in our democratic institutions that are fundamental to the decisions and programs that directly impact individual Canadians.

I would be pleased to take any questions you may have on the appointment process.

[The Chair, Conservative, Kevin Sorenson]

Thank you very much, Ms. Sherman.

We'll now move to the first round of questioning and that goes to the government side with Mr. Lefebvre.

You have seven minutes.

[Paul Lefebvre, Liberal, Sudbury, ON]

Thank you very much, Mr. Chair.

My thanks to the witnesses for their presentations.

As a lawyer and an officer of the court, it disturbs me to see the unacceptable delays in appointing judges to important tribunals.

Ms. Sherman, I noticed that your presentation deals with the new system for appointing judges, not the old one. However, the audit covered the period from March 2010 to November 2015. You talked to us a little more about what is happening with the new system since February 2016.

When I look at the tribunals experiencing a major shortage of judges and delays for the parties wanting to be heard, I see huge repercussions. I found one of those cases to be outrageous. I understand the system, but I just want to check a few things before I talk about that case in particular.

According to your explanation, recommendations for appointments come from the Queen's Privy Council for Canada, represented by the cabinet. Decisions on the appointments are therefore made by the Governor General on the advice of the Queen's Privy Council for Canada, represented by the cabinet. Ministers actively manage all the Governor in Council appointments in their portfolios and the Privy Council Office provides operational support and non-partisan policy advice to the Prime Minister and the cabinet ministers. So you make the recommendations to the ministers and they decide. Is that indeed the case?

In the case of the Specific Claims Tribunal, it reads as follows:

At the Specific Claims Tribunal Canada, where members must be superior court judges, a 2014 analysis indicated that it required one additional full-time member and “a sufficient number of part-time members to bring the number up to four full-time equivalents.”

So there is a need. The quote continues:

Despite this need, which was confirmed by the Department of Justice Canada, no appointment was made to the Tribunal between 2012 and the end of our audit period.

So, three years. The quote continues:

After the audit period, Tribunal officials told us that this need had increased to six judicial members. A shortage of appointees at this Tribunal means further delays in addressing First Nations claims in a timely manner. Tribunal officials told us they had to inform interested parties that the Tribunal could not confirm hearing dates due to the lack of available judges.

Did you provide recommendations of judges to fill these positions? Were those recommendations made?

[The Chair, Conservative, Kevin Sorenson]

Ms. Sherman, and also from the department, perhaps after Ms. Sherman, you could respond if you want to.

[Janine Sherman]

There is a process in terms of appointing judges, which, as the Auditor General noted, is slightly different in that it requires agreement with the judiciary. There is a process by which the Minister of Justice will work with judicial affairs in terms of making sure there are people available who are suitable for the positions. That is the process we support in terms of making those recommendations.

I would ask my colleague to perhaps speak specifically in response to the case for that tribunal.

[The Chair, Conservative, Kevin Sorenson]

Mr. Dendooven.

[David Dendooven, Corporate Secretary, Department of Indian Affairs and Northern Development]

The department as such plays no part in the appointment of judges to the tribunal. All we do is look at the Privy Council Office’s website and see whether appointments have been made. For example, in May of this year, we saw that three appointments had been announced.

[Paul Lefebvre, Liberal, Sudbury, ON]

Mr. Dendooven, I would like to go back to one point.

According to the Auditor General’s report, from 2010 to 2015, the tribunal was in desperate need and no appointments were made. So I would like to know if a recommendation was made. You tell me that it is not your responsibility. I understand what you said and I thank you very much for it. However, who made the recommendation? I thought it was the Queen’s Privy Council for Canada.

Who made that recommendation?

[The Chair, Conservative, Kevin Sorenson]

Ms. Sherman.

[Janine Sherman]

I would clarify that...and you're correct and have described the improvements in the process that have been made recently. Under the previous process, the process for appointing judges to GIC positions is the same in the sense that it requires the Minister of Justice to work with the judiciary and develop a list or a roster of judges who are available for those appointments.

[Paul Lefebvre, Liberal, Sudbury, ON]

Okay, and I guess I'll ask my question again.

Was there a list made or not?

[Janine Sherman]

I was going to say that the process, in terms of those appointments, is different now. There was not a list made by a selection committee at that time. It was a process that was managed through the Department of Justice, with the Minister of Justice and judicial affairs. So I'm not in a position—

[Paul Lefebvre, Liberal, Sudbury, ON]

My question is, why not?

This is not normal, this is not acceptable that we have first nations claims that are not being addressed because somebody is not naming somebody, and nobody wants to say.... From what I'm hearing here, you guys are passing the buck. Basically you're saying, “We don't know who appoints this.” Yes, you do know who appoints this—

[Janine Sherman]

Yes, we do know.

[Paul Lefebvre, Liberal, Sudbury, ON]

I'm asking, was there or was there not a recommendation made of somebody who could sit on this tribunal?

[Janine Sherman]

I'm not in a position to—

[Paul Lefebvre, Liberal, Sudbury, ON]

Who is then, if you're not?

[Janine Sherman]

—provide information on whether the recommendations were made—

[Paul Lefebvre, Liberal, Sudbury, ON]

Why not?

[Janine Sherman]

—because the public service is there to support, as I mentioned, the process for appointments. In this case these are appointments that are managed through a negotiation and a discussion with the judiciary and the Minister of Justice. PCO, in our role, does not support that process. It is—

[Paul Lefebvre, Liberal, Sudbury, ON]

I'm sorry. Again, I rarely get upset, and the chair knows this. This is not acceptable at all.

[Joël Godin, Conservative, Portneuf—Jacques-Cartier, QC]

No, it isn't.