Public Accounts Committee on Feb. 13th, 2023

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much, Mr. Chair, as always, for your very lucid comments and the questions you asked.

The first thing, going back to your previous comment, is that if the Government of Canada is liable, the taxpayers of Canada are liable. The money to fund the Government of Canada comes from the taxpayers. On the argument that the government should just pay, and not the taxpayers, I don't know how that's possible, unless you're arguing that somehow there is another source of funding I am not aware of.

Number two, again, my understanding.... I am not offering legal advice, because I am not here as an attorney and I haven't signed an NDA and reviewed these contracts. My understanding, though, is that every employee within the Government of Canada—or the limited number who have seen these contracts—had to sign the NDA, and in order to mitigate....

Blake has asked a very good question: What are the risks? The risks, I think, again would be that somehow we didn't follow the procedure in the contract, so the government breached the contract by not following the procedure, and then the information became public and the supplier had a loss and sued for damages. What the loss would be...it could be that another country had a different price and suddenly saw that Canada's price was better and then got all upset with the supplier. I don't know the answer to what it is that could come out, but there certainly could be.... Now, how high a risk that is, I don't think I'm equipped to assess. I just know that the reason for the motion was to mitigate that risk, to make it so that the supplier didn't have a right of action against us.

I take the point—I absolutely do—that contracts should generally be drafted in a way that allows parliamentarians access to them in any case. These I would consider to be very special contracts, like defence procurement contracts, because of the fact that the vaccines were new. They were right at the beginning stage of development when these were signed. It wasn't like they were signed way after other countries. I believe we were one of the fourth or fifth countries to sign the vaccine contracts. I just thought I'd add that point. We were early on in the process. The suppliers had a lot of leverage, and they're unusual forms of contracts. The only ones I know of that are like this are defence contracts.

Is it so much of a burden to follow the procedure of the contracts and sign it? That's my question. I understand that there are some people who feel that it is, but I believe that I would be willing to sign it as a member of Parliament, because I don't believe that I intend to divulge what's in the contract in violation of my confidentiality oath, and it prevents taxpayers from potentially funding litigation and a potential damages award, so why wouldn't we...? I take the point that contracts should be redacted as little as possible in this vein, and I think that's universally agreed. The committee could even pass a motion to that effect.

With respect to the question of breach of privilege, Mr. Chair, I'd ask you the question. If the member felt that way, wouldn't having to access the documents in a secure location be equally as constraining as signing a document? I'm not a hundred per cent sure that is a fact.

[The Chair, Conservative, John Williamson]

That is, in fact, why I raised it, Mr. Housefather.

Since you asked me the question, I think it is. I think Parliament is secure. It is a secure location, and I wonder why the government has inserted that. I'm answering because you asked me.

[Anthony Housefather, Liberal, Mount Royal, QC]

Yes.

[The Chair, Conservative, John Williamson]

I view that as an abridgement of the rights of parliamentarians, along with the NDA.

[Anthony Housefather, Liberal, Mount Royal, QC]

Let me come back. The committee, the national committee that is charged with looking at our intelligence agencies, views everything at a SCIF. That's where they go for their meetings. There is—

[The Chair, Conservative, John Williamson]

Can I ask you, did the Auditor General have to go to a SCIF to review these documents?

[Anthony Housefather, Liberal, Mount Royal, QC]

My understanding is that the Auditor General signed a confidentiality agreement, and I don't know where the Auditor General went to see the documents.

Members of Congress go to a SCIF.

My understanding is that there is a secure location in the Justice Building. I don't think you're going to be going far away. The question of a secure location.... It has been set up to be a secure location. It doesn't mean members can't go there together. There is nothing that says you have to go one at a time into the SCIF.

In any case, I don't think either of these are unreasonable requests, but—

[The Chair, Conservative, John Williamson]

Would the committee meet together in this SCIF? I'm a little confused now. Mr. Fragiskatos referenced this, seeing them all together. I let that go, because I didn't know what he meant. Are you now suggesting that we would go as individuals or in small groups?

[Anthony Housefather, Liberal, Mount Royal, QC]

No, I'm suggesting that, in a SCIF, the committee could do as it wanted. You could have the entire committee at once in a SCIF, or you could have members able to go from 8 a.m. to 10 p.m., or whenever, into the SCIF. Again, I look at our colleagues in Congress, where that is what they do. For certain types of sensitive documents, they go into a SCIF. They have the right to review it from x time to y time. I don't think that's a really difficult thing to do.

[The Chair, Conservative, John Williamson]

You realize that you're conflating a contract with pharmaceutical companies that are available in other countries around the world with national security. I think members have reason to be skeptical about that linkage, particularly when these contracts are available, and no other country that I'm aware of has put them on the same pedestal as a national security document.

[Anthony Housefather, Liberal, Mount Royal, QC]

This is now a back and forth, as opposed to...but that's fine.

Again, I don't know what every other country in the world has done. I would be surprised to hear that you know what every other country in the world has done and how every other country in the world has handled these in terms of requests from parliamentarians. I believe that in most countries they are highly confidential agreements. Again, my understanding, which is the only thing I can look at, is that the Canadians ones have confidentiality agreements. I'd be very surprised if the Canadian ones are that different from the ones signed with most of our allies in most other countries.

If the requirement under that contract is that you need to sign a specific NDA, which is an unusual provision in our contract, but it exists in some cases, then I don't know that following it is such a difficult step. Again, though, I understand the views of the chair and others that it might be something that goes beyond what they want to do. Again, I think it's not unreasonable to propose it as an amendment, because I think that, again, it mitigates risk. I believe this is a good-faith attempt to find a way for everybody to quickly see all the documents in an unredacted way.

If the committee wishes to change the 30-day period to a 15-day period to be the same as Madam Sinclair-Desgagné's motion, I think that would be a perfectly easy and friendly amendment so that there's not delay. If anybody has another suggestion to deal....

I'm going to make one other suggestion, Mr. Chair, because I think that was also Mr. Desjarlais's question. If what is really requested is a legal analysis from the department as to why there's a risk related to seeing these contracts without an NDA, I'm sure we could probably provide something like that, too, but I don't have the ability to do that right now.

In any case, those are the reasons, again, that I proposed what I did. Everybody has a right to say they don't agree, but it was done in good faith.

[The Chair, Conservative, John Williamson]

I'm not trying to be argumentative. I'm going to ask just one question, and this is for everyone's information.

Is your concern that the risk of being sued exists merely by this committee's members' viewing the documents, or is it preventative if the information were to leak out after it? What exactly are you trying to guard against?

[Anthony Housefather, Liberal, Mount Royal, QC]

I'm answering a question acting as if I'm a lawyer, which I am, but this is me as a member. I'm not speaking for anybody but me. Although a technical breach would occur, as I understand it, if an NDA was not signed with the specific individual who was given access to the unredacted contract, if the company could suffer no damage as a result because nothing leaked from it, I couldn't see any breach that would warrant the company suing us, right? They may not like it, but I don't think they'd have a right of action, because they couldn't prove damages.

My concern would be that something came out afterwards, and they said to the Government of Canada, “You didn't follow the proper form. You didn't bother to get the NDA signed, and this leaked. Now we've lost this money, and we're suing you.”

That would be my feeling, but again, I'm not acting as a lawyer here. It's just my own personal feeling, Mr. Chair.

[The Chair, Conservative, John Williamson]

Thank you.

Now we have Mr. Fragiskatos, please.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Personally—I speak for myself here—the NDA is not something that should cause offence to members of Parliament. For the reasons we've just heard, I think it's risk-mitigating.

To the point that was raised earlier, that it's the government that would be liable and not taxpayers, yes, of course it would be taxpayers who would be liable. With great respect, that's not a strong argument. I think we have to think about this issue in broad terms and recognize our responsibility with to respect to the taxpayer.

There's a lot of movement that's happened here. We have something on the table that would allow us to see documents unredacted to understand more about the nature of these agreements. I'm not so sure how the signing of a non-disclosure agreement gets in the way of our parliamentary privilege. Others will have different views. Personally, I don't have a problem with that based on the risk mitigation that I just referenced.

[The Chair, Conservative, John Williamson]

Thank you.

Mr. Desjarlais, you have the floor.

[Blake Desjarlais, NDP, Edmonton Griesbach, AB]

Thank you very much, Mr. Chair.

I did leave my last comments in regard to a question, so I appreciate the answer from our Liberal colleagues in relationship to the risk. I think there has to be an established risk, a great risk, if we are to ask members to sign an NDA to view documents that are within the purview and the responsibility of this committee.

I am of two minds. One, the question still stands on whether or not there is sufficient risk here, and if there is sufficient evidence of that risk to suggest that the comments from Madam Yip, one being proprietary information, supply chains and international reputation.... Those three risks are risks that are present, not because of this committee's willingness to review the contracts, but because the government itself accepted those risks when signing an agreement with corporations, pharmaceuticals, that would bind the government to these outcomes.

I sympathize with the government on how difficult the circumstances would be. I recognize as well that maybe in extraordinary circumstances this would be required, but that argument alone is enough for this committee to want to investigate the reasons these things happened. Canadians, I think, deserve to know that.

I'm really torn on this, because I think the interest of Canadians would demand—not just of me but of all of us as committee members—to take that approach. I would offer one more opportunity of the government to present risk beyond those three factors, but I believe those three factors aren't the responsibility of this committee. It is the responsibility of the government to be doing its dealings so that, one, that would not damage the credibility of our country internationally; two, there is no risk to the proprietary information and dealings it has with these companies; and three, there is no risk to supply chain management.

These three things, I think, are beyond the scope of Parliament and committees, but are really within the scope of the government. I think those are the same reasons this committee is asking for these documents. They are the same reasons that Madam Yip was mentioning, that three items—international reputation, proprietary information, supply chains—are at risk.

That is to me a great enough risk to want to investigate this even further now, because it makes me very concerned that these contracts could have this kind of level of risk and no oversight. I think that's an important piece we need to answer because, of course, this committee's job is not to protect the government's dealings with companies, but to protect the interest of Canadians. That greatest interest in this case would be to ensure that the documents, which I think are important for us to review, and you agree with.... I think honourable members from the Liberal Party agree that this is in the interest of Canadians to see.

My problem in the amendment that's tabled, which I share with my colleagues in the opposition, is not understanding the difference between the request of the amendment and that of the motion. The motion itself establishes risk-mitigating factors from the letter from the law clerk of Parliament, which has outlined several recommendations to ensure there are reasonable safeguards. Those safeguards are built into the member of the Bloc Québécois's motion.

I need to know what the difference is between the advice provided by the law clerk of Parliament, from which his recommendations are read into the motion, and the requirement of the amendment tabled today, which would ensure that members of Parliament sign NDAs other than to bind these members to the liability of the government, which is outside the purview and requirements of these individuals.

I need reasonable grounds from the members opposite to establish why an NDA is necessary beyond the three aspects mentioned that I believe are insufficient to the requirement of an NDA, and I will cite them again, as Madam Yip so eloquently did. They are the international reputation of the government, proprietary information and supply chains.

I hope you know that's not the goal of this committee; it is just to ensure that those things are properly investigated. If that risk is present to the government, we deserve as members to know why these contracts have such a great risk. I'm more concerned now, but I want to have a very narrow question, which is an important one to my understanding of this, which is why you feel the NDA portion of your amendment and the 30-day portion is a requirement for you to vote in favour of the interest of Canadians, when I believe the Bloc Québécois's motion establishes reasonable grounds, as noted on page 3 of the letter sent to us by the law clerk on safeguards.

Do you understand what I'm saying? I can't understand the difference between the safeguards tabled by the motion and the safeguards established by the amendment, which to my mind only brings greater risk to members of this committee, rather than the other potential risks mentioned by Ms. Yip.

Thank you.

[The Chair, Conservative, John Williamson]

Thank you.

Next we have Mr. Housefather.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you.

I appreciate that, because it clarifies things. Again, this risk and the risks mentioned by Ms. Yip relate to the relationship with the suppliers that would only arise as a result of the divulgation of confidential information to the public domain by somebody who sees that information. That's not because of the contract, and it's not what's in the contract that's embarrassing.

What she's saying is these suppliers rely on the Government of Canada to follow the procedures set out in agreements with them, and if they don't, that's both a breach of contract and a potential business relationship risk for future deliveries and future contracts with a supplier. In this case, there are provisions in those agreements that require the Government of Canada, before furnishing the information, to have people sign NDAs. This is what I understand from the department. Everybody had to sign an NDA when they saw this contract.

In order to do that and avoid the government being told by the suppliers that it didn't follow the modalities of the contract, the amendment asks people to sign NDAs. We follow the modalities of the contract in the event that there is such a breach of confidentiality in the future. The Government of Canada at least followed what was required under the contract and didn't breach the contract to give the information to somebody who didn't sign the NDA. That, I think, is a relatively straightforward proposition.

It has nothing to do with what's in the contract as it relates to the risk she's talking about. It's the result of a potential breach, and what happens if you didn't follow the procedure of the contract that led to the breach arising. I think the main risk is related to the supplier who is upset, potentially sues us and potentially doesn't want to do business with us in the future. It's not to protect the supplier in any way. It's only to follow the procedures that were set out in the contract.

That's the best way I can answer that question. That's why the NDA is being proposed. That's what the contract says is supposed to happen.

[The Chair, Conservative, John Williamson]

Thank you.

Ms. Bradford, you have the floor.

[Valerie Bradford, Liberal, Kitchener South—Hespeler, ON]

Thank you, Mr. Chair.

I haven't participated in the debate so far, but could Ms. Sinclair-Desgagné clarify for me why she feels the need for us to go back and look at the background documents the AG reviewed in confidence in order to prepare a report? Does she feel we're more qualified than she is? I ask because we don't normally ask to see the documents the AG looked at in order to make a report for this committee.

[The Chair, Conservative, John Williamson]

I'm going to turn to Ms. Shanahan first and then to Ms. Sinclair-Desgagné.

Ms. Shanahan, you have the floor.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

I will follow.

[The Chair, Conservative, John Williamson]

You're welcome to flip with her, if you like.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Yes, because it's actually along the same lines. I welcome the remarks of Ms. Sinclair-Desgagné.