CONTENTS
Thursday 17 January 1991
Appointments review process
Martin H. Campbell
Afternoon sitting
Felix Holtmann
Adjournment
STANDING COMMITTEE ON GOVERNMENT AGENCIES
Chair: Runciman, Robert W. (Leeds-Grenville PC)
Vice-Chair: McLean, Allan K. (Simcoe East PC)
Bradley, James J. (St. Catharines L)
Frankford, Robert (Scarborough East NDP)
Grandmaître, Bemard (Ottawa East L)
Haslam, Karen (Perth NDP)
Hayes, Pat (Essex-Kent NDP)
McGuinty, Dalton (Ottawa South L)
Silipo, Tony (Dovercourt NDP)
Stockwell, Chris (Etobicoke West PC)
Waters, Daniel (Muskoka-Georgian Bay NDP)
Wiseman, Jim (Durham West NDP)
Substitutions: Kwinter, Monte (Wilson Heights L) for Mr McGuinty
Perruzza, Anthony (Downsview NDP) for Mr Waters
Sutherland, Kimble (Oxford NDP) for Mr Hayes
Clerk: Arnott, Douglas
Staff:
Pond, David, Research Officer, Legislative Research Service
The committee met at 1006 in committee room 1.
APPOINTMENTS REVIEW PROCESS
Resuming consideration of the appointments review process.
MARTIN H CAMPBELL
The Chair: The first witness this morning is Martin Campbell, who, as your agenda indicates, served as staff lawyer with the Macaulay review of the Ontario regulatory agencies. Mr Campbell has been kind enough to appear before us this morning to share some of his experiences with respect to the Macaulay experience, plus some observations on what we are now embarking upon with respect to a review of order-in-council appointments. Welcome, Mr Campbell, and thank you for appearing before us. You have some opening remarks?
Mr Campbell: Yes I do, Mr Chairman, thank you. I would like to add a brief word about my own background. I am a lawyer and I am in private practice now. I am practising in the areas of administrative law and health law. I have my master's degree in public law from Osgoode Hall Law School. Prior to going into private practice I worked for the Ministry of the Attorney General. I was seconded to the Ministry of Health, and in the course of my seven years there I appeared before many tribunals.
Towards the end of my stint with the government I was seconded to Management Board of Cabinet. In that capacity I was assigned to R. W. Macaulay and assisted him in the drafting and some of the research on his report. My own view is that the report is of sufficient importance that it is worth considering. It may well have a significant impact on the administrative law of the province over the next few years. It seems to me that the operation of a committee of this sort is well served if you look at some of the major recommendations and insights set out in that report.
I thought I might start with a brief word about the approach this committee is taking on the issue of the terms of reference for the review of appointments. I think it is essentially the correct approach.
Last year I appeared before the standing committee on general government. I think Mr McLean was involved in that. We had as our topic the alterative dispute resolution in administrative law. As some of you know, alterative dispute resolution is a way to reduce cost and delay. In the course of that, I met Norman Sterling, who, in addition to his service on the standing committee on general government, was Chair of the standing committee on government agencies. He asked me to comment on the extent of the work this committee does, because if you consider that there are approximately 600 agencies for this committee to look at it is a staggering workload. He asked me for my thoughts on the ways in which the time of the committee could be more usefully used. In the course of my discussions with him, we discussed the prospect of moving away from the notion of studying a dozen or so committees in the course of a session and looking at generic issues which would be of advantage to all the agencies as a whole.
The appointments process is a topic of interest to every single agency. It is more than that: it is a topic of interest not only to the agencies but of vital importance to the proper working of agencies. An agency is no better than the sum of its members. If you start there, you are really making a significant impact on the performance of agencies. But more than their actual day-to-day performance, the whole appointments process has to do with the credibility of agency decisions in the public mind. If the public has a sense that the appointments process is open, designed to get the best possible candidates and fit the candidate to the task at hand, then credibility, enforceability and performance will inevitably be enhanced. So it seems to me you have the right approach in focusing on appointments and focusing on appointments in such a way that it covers the full range of agencies.
I thought I would divide my more detailed remarks into two parts. The first part will be a comment on the actual terms of reference you have before you. As I glanced at them earlier, I was somewhat taken aback with the scope of work before you, because it seems to me you will be swamped with applicants and materials. After I address some of the problems and some of the positive aspects of this which I can see, I thought I might focus a little on the second portion of your mandate, which is the discussion on how best to perform the task of reviewing the appointment of persons to agencies. I think it is somewhat premature to get into a detailed discussion of that, because you are going to be learning a lot in the next six months. It might be useful, though, to have some background principles which might give you some guidance on that task. I thought those would be the two areas I would attempt to address.
I want to turn now to the immediate task before you, the terms of reference. First, I would like to commend whoever drafted these terms of reference, because it is very clear. As you know from your experience, there is a difference in drafting between the wordsmithing side of and the policy side of. The wordsmith who drafted this has indeed done a fine job. It sets out a very clear approach and mandate and direction to the committee.
The problem, as usual, with material that is extremely good in form arises when you look at the substance. The first difficulty I glean from this appears in the first paragraph. It seems to me that you are faced with a massive volume of work. If you look at the approximately 600 agencies, with membership ranging from an average of, say, 10 persons per agency, you are looking at something like 6,000 positions. I do not know if you have the numbers in greater detail from Management Board, but let's assume that as a ballpark figure. If the appointments are for three years and there are renewals for a further three years, you are looking at the review of possibly 2,000 applications in one year or 1,000 in six months. You may well be faced with an enormous volume of work, and it just struck me right off the top that some thought will have to be given to the extent to which you are going to be looking at this broad range of paperwork.
A second difficulty which is not perhaps apparent from the actual wording is the difficulty in defining precisely what qualifications a particular applicant needs. There are approximately 600 agencies. They are broadly categorized as regulatory, advisory or operational. The qualifications and specialization required varies enormously. If you are to assess a person's qualifications, you also have to assess the committee, agency, board or corporation to which the person is going to be appointed. This will take some staff work or at least reliance on the certificate of the minister that this person is indeed initially qualified for the task at hand. There is a fair amount of insight required in assessing precisely what an agency does.
Third, you are going to have the task, in one form or another, of screening applicants, even if it is a cursory review of the paperwork. There may well be the potential for embarrassment if an applicant slips something by you; they may have a degree from a university that does not exist. You all know the danger of embarking on that sort of exercise.
There are two or three other points that strike me which have not been set out in this material. There is the extent to which the candidates are going to be informed about this process. Will they be told what to expect? Do you in fact know what to expect in this? Will the chair of the agency to which someone is to be appointed be involved in this in any sense? It is critical to get the views of the chair of the agency, it seems to me, particularly if you are looking at a full-time position where people may be working long hours, periods of stress, where discussion back and forth on sensitive policy issues and so on is the norm. The chair of the agency is also in the best position to describe to a candidate precisely what goes on in that particular agency. If I were a candidate, I would like to have a conversation with the chair; we are looking at three to six years' activity.
Another point right off the top is the form of public notice. It seems to me that the underlying purpose of the terms of reference is to open the process. It struck me that the tabling of the certificate may not be enough. You may wish to have a broader public notice of the names of candidates. It seems to me that this is a critical component of the whole process.
The second paragraph also creates, I think, some difficulties which may emerge in the next several months: the criteria upon which your selection is going to be made. You will inevitably have to cut back on the number of persons reviewed. You may wish to develop criteria based on full-time jobs, part-time jobs. Are we dealing with a significant major board or are we dealing with a board that meets infrequently? Are we going to focus on regulatory boards, operational boards, advisory boards? After all, the consequences of a bad appointment in an advisory board can be dealt with within the government itself; the consequences of a poor appointment on a regulatory board affects the public interest in a greater way. You will perhaps wish to canvass the suitability of individual candidates from several perspectives: their own credentials, but whether they represent a constituency which the board or the agency is designed to deal with and whether in fact the full range of candidates represents the full range of race, language, gender and so on across the province. There may be a variety of criteria you will have to develop in deciding who is going to be looked at.
I do not intend to comment on paragraphs 3, 4, 5, 6 and 7. It seems to me that sets out a very sensible approach.
I do have a comment on paragraph 8. I am not sure that the words "no recommendation" are wise, because I think there is a possibility that this could be perceived in the public mind as "not recommended." It seems to me that this is not quite what you want to accomplish, in any event. The real decision is that you do not wish to interview a candidate, so a more appropriate response would be something like, "No comment; let the minister decide," or "Acceptable; we do not intend to interview." Wording like that could be perhaps a little more clear.
I do not think I can add anything to paragraph 9.
Paragraph 10: There are a couple of points here which I think may cause some difficulties, but if you are aware of them it may help you to ease the possibility of confusion. We presume, of course, that the candidate will know and have access to the material which is before the committee, so the candidate will know what you know. Second, although you say there will be no witnesses other than the intended appointee, you may wish to have some sort of role for the chair of the agency. Third, what about a written complaint you might get about a candidate? That is a very sensitive issue. If you have a letter from one of your constituents who says, "I know this candidate and he is a terrible person," and so on and so forth, should that letter be before the candidate so that some comment or response can be given?
Will the materials and reports and the comments of the candidate be on the public record? I expect they would be. If that is the case, suppose the applicant is indeed appointed to a board? You may find in the next month a lawyer for a litigant before that board going on the record saying, "I think this particular candidate has a conflict of interest," or a bias or something of that sort on the basis of the remarks made during the hearings.
Last, there seems to be little interview process in an informal way, so that it is difficult to screen a candidate in other than this sort of forum. This is not exactly the best forum for dealing with what might be sensitive professional or other issues. There are some of those difficulties which I think will have to be solved.
In paragraph 12, I mention again perhaps getting the views of the chair of the agency or the views of the public through written statements.
I have no comments on 13, 14.
With respect to paragraph 15, the words "no recommendation," again, you might want to look at the wording there.
With respect to paragraph 16, you must understand, of course, that it is indeed the minister who makes the final decision. This is perfectly appropriate, given the nature of agencies, boards and commissions. They are in effect emanations of the government in one form or other, so it is appropriate that the minister of the day make the particular determination.
In our administrative law, the minister of the crown is responsible for the actions of his or her department, and if an appointment is a poor one, the minister is responsible for the consequences of that. If this committee or any committee participates in the decision-making process, there may be the dilution of the concept of ministerial responsibility. The minister can turn to the questioner in the House and say: "Don't look at me. The individual candidate was vetted thoroughly by the standing committee on government agencies and it found no difficulty." You may have a dilution of that concept.
These are some of the problems which I see as I look at these materials. Just to recap this first part, I think the volume may well be extensive. You might want to query the way and the extent to which the ministry will do initial screening and verify that the credentials in fact are accurate. You may be able to ask the ministry or the minister making the appointment to give you a good sketch of the agency involved. It might be useful to develop some informal guidelines which can be given to a candidate so he will have an idea of what is involved, clarify for him what materials he will get, the sorts of questions which might be put.
In addition, the issue of extending the notice to the general public I think would have a greater effect than tabling; in addition to tabling, there might be some room for public notices. I think it would be advisable to try to obtain the views of the chair of the agency involved and provide some forum for the views of the public to be expressed. Last, your reporting certificates or reporting letters and so on should perhaps avoid the words "no recommendation" to avoid misunderstandings.
These are matters which I think can be anticipated looking at the terms of reference as they stand right now. Others may well emerge. The issues which I have raised may not be as serious as we think.
Before I go on to the second portion of my talk, I thought I might ask if there are questions at this stage. Mr Chair, I am in your hands on this, whether it would be useful at this point.
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The Chair: Are there are any questions at this stage on Mr Campbell's testimony?
Mr McLean: I have a question. You said we may want to let the minister make the final decision. The minister has already made the decision on who he is appointing. It is before the committee to decide whether his credentials qualify. That is really all the committee does. What comments do you have with regard to the final decision? The minister has already made it.
Mr Campbell: I do not necessarily agree that the minister has necessarily made it. It is an intention to appoint. It does not necessarily mean the final decision has been made right at square one. That interpretation does not really flow from the words "intends to appoint" a person. I think there may be a political problem if this committee examines the credentials of a candidate and determines that in its view the candidate is not qualified. The ball then goes squarely back to the minister to make a decision, it appears to me, and it becomes a political problem as to whether the minister wants to proceed in the face of a negative committee recommendation.
Mr McLean: We may be getting a different story from you from what we got from Ms Phillips, I believe.
Mr Campbell: The wording seems to be, "The minister of the crown shall lay on the table a certificate stating that the Lieutenant Governor in Council or the Premier, as the case may be, intends to appoint a person to an agency..." so I would think it is not a final decision necessarily. There is an intention to appoint.
The recommendation in paragraph 16 on recommendation of an appointment mentions "any decision of the committee...respecting the appointment." It seems to me that if you take this on its face there is some room for a final decision only after the committee has made its recommendation. That is my reading of the material. If it goes beyond that, I do not know that I can properly answer.
Mr Grandmaître: Maybe I should ask David or you, Mr Chairman: Does that mean we will receive a list of five or six people and this committee will have an option to recommend to the minister, or will we receive one curriculum vitae with a minister's recommendation?
The Chair: That is my understanding. The subcommittee will receive a list of potential appointees and the various parties that comprise this committee will make a selection on the individuals they wish to have appear before the full committee, but you will only have the one recommended candidate for a particular position.
Mr Grandmaître: Going back to Mr McLean's question, the decision has already been made by the minister.
Mr Campbell: I am really commenting on the wording of the terms of reference. That is a political decision that I really should not comment on.
Mr Grandmaître: I just want to clarify this.
Mr Silipo: I think we may be getting caught up a little in the wording. I appreciate, certainly from Mr Campbell's perspective and obviously from ours, that the wording is important, but I think we understand what it means. What it means is that the names which will be coming forward are the intended appointments as far as the ministers or the cabinet are concerned, subject to the process that is there.
That process is obviously what we have been talking about, which is in our ability to review those appointments. If, as a result of that process, we determine that we are not going to review certain appointments, then the process continues for those appointments and they will then be firmed up as the appointments. Those ones we decide to review will go through the review process; at the end of that, we make whatever recommendations we wish to make. Then, as Mr Campbell said, depending on the recommendation, the process again goes one of two ways.
I do not think it is a question of getting confused about the process. I think we are all quite clear about what it means each step of the way. Whether we agree with it is another matter, but I do not see that there is any great sense of confusion about it.
Mr Kwinter: I think the sense of confusion is that on the one hand there is a feeling that this committee will be receiving applications from people who have submitted names, whether through advertisements or whatever, and will then make a recommendation; on the other hand, the minister will make a selection whichever way he chooses, whether it be through advertisements or just by picking people and then submit his recommended person to this committee for ratification and that the subcommittee will decide which ones it wants to pursue and which ones it is just going to let go through. That is my understanding.
Mr Silipo: But it is clear to me, and certainly I think it has been clear to all of us in the discussion so far, that the latter is the applicable procedure in terms of what we have before us and what has been described to us; that is, that the minister's or the Premier's office, depending on the appointment, will in fact be sending a name forward saying, "This is the person whom I intend to appoint to this particular position." Then the committee, as I said, has the option of going through the variety of choices that we have.
The Chair: I do not think there is any disagreement on that. I would like to direct a couple of questions to Mr Campbell.
You mentioned the input of the chair being critical, and I know that Mr Macaulay emphasized that as well in his report. You have taken a look at the temporary standing order. Do you see any flexibility in there for the committee or perhaps the subcommittee? Would that be another avenue that perhaps a subcommittee itself could have the opportunity to call upon the chair of an agency, board or commission to discuss the merits perhaps of a particular potential appointee or simply the matters that chair feels are important in terms of the selection criteria?
Mr Campbell: I think you are to some extent restricted by the wording of paragraph 12 of the terms of reference, which I will read: "In reviewing an intended appointment, the committee shall not call as a witness any person other than the intended appointee." On the face of it, that starts to tie your hands somewhat in the sorts of people you can call before you.
The Chair: By your reading, does it tie the subcommittee's hands?
Mr Campbell: In the sense that the subcommittee is part of the larger committee and it would be in some ways difficult to have a subcommittee doing what the committee cannot do. There might be a way around it if you could receive comments in some form other than the witness forum. You might be able to review a written comment. You might be able to conduct an informal interview out of the committee setting. But not calling the person as a witness in that technical sense, that might give you some room.
The other issue of course would be, is there any flexibility in the terms of reference themselves? These are not necessarily carved in stone. It may be advisable for the committee to ask that the terms be broadened somewhat to allow a broader range of people. But it may also be the case that a candidate on his own initiative or at the invitation of the chair of a particular committee could well have a discussion with the chair of the committee in general terms about the nature of the agency, the type of work, and there could be some sense of the chemistry between them. So perhaps the candidate might come to you or go to the minister who intends to appoint him and say: "I've met with the chair. I can't stand him or her and I think it's a hopeless task and I'd like to withdraw my appointment," or, "I've met with the chair and I think we'll get on extremely well and let's proceed."
Now, that type of question that committee members might put to an intended applicant would be: Have you had a discussion with the chair and do you think you can work in that context with that group of people? There may be ways to deal with it indirectly.
My best recommendation would be, is there any difficulty in amending the terms of reference to give you that flexibility? Short of that, I am sure there are other ways of getting some information and some sense of the mix between applicant and agency in informal ways. I am sure ways can be worked out to do that.
The difficulty with a formal presentation with the chair of the agency under oath, as it were, or appearing before you is that he may have very serious reservations, which in that sort of forum, a public record, are difficult to put across. There may be hesitations of competence which perhaps should not be expressed in the public forum. But by and large, it seems to me that where possible, the views of the chair of the agency should be canvassed to make sure there is a mix that works well for both the board and the candidate.
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The Chair: You raised another issue, which I am sure is a sensitive one with the opposition parties. That is the fact that if a particular candidate who has been subjected to a review creates problems for the government at some point in the future, the minister or perhaps the Premier even can say, "Look, the responsibility lies with the committee" or a degree of responsibility lies with the committee. Rather than simply voting against every government recommendation, how do opposition members of this committee deal with that sort of potential problem? Do you see any way around that sort of difficulty?
Mr Campbell: I think there are several areas in which a candidate for an appointment can cause embarrassment. Let's assume that we have a very simple case where there has been a clear error or outright misrepresentation on a curriculum vitae. It seems to me that this committee should obtain the assurance of the ministry that intends to put a candidate forward that it has in fact checked the credentials and the university degrees are in fact university degrees and the paper trail is an accurate and verifiable paper trail. That would eliminate the major, massive error.
If the embarrassment is caused by what might be called an error of judgement which the agency member makes in the course of a case, makes outrageous remarks which rightly upset a large segment of the population, the sort of thing that one might not pick up in a CV and the sort of thing one might not pick up in the interview process, I do not know that there is much that one can do about that. I think it is a question of doing your best to screen people, doing your best to assist the presentation they make, doing your best to check the appropriate references and so on to see that they are the sort of person who is likely to use good judgement. It may be the price of opening the appointment process that the responsibility that ministers and governments have for their appointments will necessarily be diluted. There is a price to pay, in effect, and you have to balance the pros and cons and come to a decision.
Mr Kwinter: You commented about the desirability of having the chairman of the agency being in a position where he feels the new appointee is compatible; that again may present some problems. The whole purpose of appointing this person may be to counter or in fact to bring some particular different point of view to the agency, and the chairman may feel, "The last thing I want is this guy on my board, because he is going to be presenting a point of view that is contrary to mine and I don't really require or need to have a built-in concern or problem." How do you deal with that?
Mr Campbell: I think there are two aspects to that. The first is that most chairs respect the bipartisan nature of their boards, particularly, say, a labour board, where there may be management reps or union reps and so on. People understand that a number of boards in the province have as their aim the collecting of various views across the social spectrum. So if the chair takes a highly personal view of the valid social concerns expressed by a member, I would have more questions about the chair than I would about the appointment.
On the other hand, there may well be a chemical mix, the way some people get along and some people do not. It seems to me that the chair could point that out in an informal way. I do not know that you would want to go on record saying, "I respect their right to have those views, but I can't stand the way they express them." If you are in that sort of situation, you have to again balance the interests of having a public process with the sensitivities of the people involved. I am not sure there is a way out of that one. I think the real answer to your question is to have chairs who appreciate the nature of the board that they are chairs of and who appreciate the honestly held views of people and respect their right to hold those views and deal with it. If it gets to a personal conflict, that is a whole different issue.
The Chair: Anything else at this stage? Would you like to continue, Mr Campbell?
Mr Campbell: It seems to me that the terms of reference, as they have been presented to you, are extremely wise in allowing you the prospect of commenting on how the task of reviewing appointments is performed. This seems to be one of the first attempts in government to broaden the appointment process and it makes a lot of sense to have a six-month or so, shall we say, pilot project before looking at recommendations. To some extent it is premature to offer longer-term solutions, because we really have not quite figured out precisely what the problem is.
It seems to me that you can get a handle on some of the longer-term solutions by trying to define the problem in a preliminary way. Right now appointments are made by the government of the day and it is responsible for those appointments. The government is ultimately accountable for the quality of each appointment, the performance of the agencies and the individual board members.
The problem we are looking at at this stage would be: Is there an absence of public scrutiny and is there an absence of public confidence in the present appointments scheme? Is the present appointments scheme attracting weaker candidates? Is it attracting essentially political or unqualified candidates? I do not mean that political candidates are unqualified, but often there is a perception that a political candidate is unqualified.
The absence of acceptance of the candidate may involve a loss of credibility of the board, particularly if it deals with sensitive issues involving dynamic or difficult social issues. There may be a perception that the appointments process does not give you a true representation of the social makeup, the racial, linguistic and gender makeup of the province. There may be a perception that the present system gets you poorer performance. If we are trying to focus on the problem, we have an idea that various solutions might emerge.
It seems to me if the problem is attracting better candidates, one would make greater headway in getting better candidates by having a range of training programs, greater resources, job evaluation criteria etc, which will actually help the candidates do a better job when they are on the job. It is not just an appointment issue; it is an ongoing training issue. I think that should be remembered.
It seems to me that you may have better candidates if there is some screening and participation by the agency chair and that might be better handled in a less formal setting than this one. It might be perceived as more representative of the public as a whole if the standing committee on government agencies looks at a range of applicants for the job, not just one applicant for the job. This would give you the perception that the committee is indeed fulfilling a larger role in the choice of candidates, so some of these issues might emerge over the next several months.
The key is to remember just exactly what an agency is. It is sort of the fourth level of government, where you combine legislative functions, adjudication functions and executive functions. You have to remember the agency is not a court and it does not have the trappings of a court. There are many, many differences between agencies and courts, but the fundamental difference here, for the purposes of appointments, is the notion of judicial independence. You will find people coming before you saying, "Agency chairs and agency members should also be independent, as judges are independent." There are some distinctions to be made there and I will speak of these very briefly.
You have to remember too in the notion of independence, when you speak of judicial independence you are speaking of judicial independence not so much for the benefit of the judges but for the benefit of the public which goes before those judges. They need to know that the judge is independent from the executive in that sense.
An agency is not in quite that position. An agency tends to in some respects reflect some of the government policy or is carrying out a statutory task. You will have the word "independence" used, though, to express a way to make a job more secure for an agency member. An agency member will be appointed for three years with a renewal period of three years. What you are really dealing with is, "How can I get a better candidate, who will have a securer position for that period of time, so that I can attract a better candidate?" That is not the same at all as independence, but sometimes those concepts get confused.
It seems to me that you can attract better candidates if you have appointments perhaps for a longer period of time, possibly consider a career path where candidates for an agency can move from agency to agency over a period of years. You may wish to encourage the development of contractual obligations whereby if a candidate's term is not renewed, he will be given a clear notice and severance pay to allow him to adjust. You may have to approach the problem of the quality of candidates from a different perspective and deal with it in different ways.
I think it might be useful to turn to the specific recommendations that Macaulay made, and if any of you have access to his report -- I think Mr Pond has taken you through it. I do not need to touch on the key points, but if you have access, at page 8-21 he recommends the creation of a council which would "search out potential appointees through advertising or other appropriate means...to interview and assess candidates along with representatives of the involved ministry and agency." This would have the effect of conducting both an initial screening and casting a very wide net so that people could have a sense of being eligible for appointment.
He also strongly recommends that the chair of the agency be involved in the decision and that the appointee be given a very clear description of the nature of the mandate. The appointee should also know that this is essentially a political or governmental task in which the political process is involved.
It seems to me that the search the council could undertake would ensure that you do have a broad representation from all sectors of the community, and the council itself could ensure that the right range of people is questioned.
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Lastly, in considering appointments, you might want to look at the particular requirement of the agency. Those agencies which primarily adjudicate -- that is to say, they determine rights and obligations of parties in a relatively formal setting -- require members who are in a sense independent. They are acting more as judges. This is particularly important if you are dealing with, for example, a licence revocation matter, where the government issues the licence and appoints the people to the court that hears whether or not the licence should be revoked. The perception should be perhaps, in that setting, that these people should be independent, so there could well be contractual and other means to ensure that greater independence.
The other major report in this area is the Ouellette commission report. That emanates from Quebec. I thought I might perhaps after the day show this to Mr Pond, because they have come up with quite a detailed process for the vetting of appointments. They have developed a procedure for the recruitment and selection of members of proposed tribunals. There are quite a number of points. Basically there is notification of the vacancy in a position; a request by the minister to something called the administrative tribunal's council that a list be drawn up of persons qualified to be members of the tribunal: publication of a public notice; striking of a selection committee comprising a representative of the council itself, the president of the tribunal in which there is a vacancy, a representative of the minister and a representative of the public -- and it seems to me that this is a better selection process because you are indeed covering the various bases -- an obligation to evaluate the candidates; an obligation on the part of candidates to have a minimum of 10 years' experience relevant to the position to be filled; an obligation on the part of the committee to doublecheck the candidates' knowledge, including the extent of their knowledge of the sector, their clearsightedness and levelheadedness, their conception of the role of the member, their capacity to work as a member of a multidisciplinary team and the candidates' adherence to the values specific to administrative tribunals, in particular accessibility, simplicity and speed at decision-making. It is important that the candidate understand that this is something which is done in the public interest; it must be expeditious. Lastly, a provision establishing that the list of persons found to be qualified would be valid for one year so that you have in effect a pool of people into which you can dip to get someone for your particular tribunal but that the pool would be renewed every year.
These are some of the ways that you might go about looking at a longer-term solution to the problem of vetting and screening appointments. As I said, those are basically my views. As I said earlier, the approach which this committee is taking, reviewing the appointment issue, seems to me key to the whole administrative tribunal area. Second, I think it is extremely valuable to discuss this because it affects agencies as a whole. The six-month trial period is an excellent idea because it will give you a sense of the process. It seems to me that there are models out there which you can well consider over the next several months which can give you some guidance on the longer-term recommendations.
Those are my more general comments on the second part of your mandate.
Mr Kwinter: Mr Campbell, I would like just to explore with you some of the areas of this role as an independent agency, board and commission. I think that is the crux of what we really have to look at. Is a board, agency or commission independent? Should it be independent? Is it not an extension of the government? If it is an extension of the government, then it should be a tool to effect government policy, or is it in fact independent and totally independent of government? If it is independent you have a basic problem. You have a problem where you appoint someone for a three-year term with the possibility that he can be reappointed for an additional three-year term. That means that in the first three years the appointee is very careful that he does not do anything that is going to upset the government so that he makes sure he gets reappointed. The answer to that of course could be that you appoint for longer periods of time, one term only, six years, that is it, and as a result you cannot be removed except for cause. I would be curious to get your comments on that.
Mr Campbell: First, you are correct that this is perhaps the single most important and difficult issue in the whole area of the role of agencies, boards and commissions. Agencies, boards and commissions live something of a hybrid life. They are not quite courts. They are not quite legislative assemblies. They are not quite the executive. They look like all of these in one form or another. The tasks given to a particular agency may shift over the course of the work of the agency. In one matter it may primarily adjudicate. In another matter it might set a policy. In a third area it might administer or examine or inspect. So the agency itself carries out a hybrid task.
When you apply the relatively simple notion of independence of the judiciary, which is the classic model of independence, to that hybrid function, that three-part function, you have real definitional problems. Nor is it enough to say that this particular agency primarily adjudicates, therefore its members should be independent, because often that adjudication process may have components of policy-making to it so that no particular task is going to be completely clean or simple. So it is indeed an extremely difficult issue.
Another aspect of it is that the government of the day may well create a board or agency to carry out an aspect of policy and the minister may indeed give the board, quite properly -- or the statute may authorize this -- directions or interpretations or make declarations as to the public interest. For example, a minister may make the decision that so many licences are going to be issued and the board will have to accept that as the norm which the minister establishes, and the minister is indeed ultimately responsible for that type of decision-making. On the one hand, you have the hybrid function; on the other hand, you have the notion of independence of the judiciary, and next you have the concept of a task to be performed. At the same time, the minister also may wish to distance himself or herself from the work of the board. The board may be given a task which everybody knows is a political nightmare and people will want to back off and duck the responsibility. You will find that the word "independence" is trotted out in those situations a lot more quickly.
There is no simple answer to the very sophisticated question you have put. There is just no way you can say, "Here is an independent agency, in the strict judicial sense, and here is one which is beholden to the government." It is extremely important to know that term does not really cover the agencies, although it is used a lot in connection with agencies.
The best way to perhaps understand the role of agencies is to say they are at arm's length. The arm is still attached to the government but it is a little distant from the government. Depending on the type of task to be performed, you want that arm to be a little longer. So if you really have a situation where a minister says, "I want to revoke somebody's licence," then you want the arm to be pretty long. If, on the other hand, you have an agency which is looking at a rate to be assessed or a price to be allocated or whatever, you may want that arm to be quite short. The problem is that the arm has to sort of move, and the problem is that the arm must be attached to the body of government for the purposes of accountability. It is not like a judge who is another body entirely.
This makes that concept very difficult to apply in practice. You have to look almost at the specific case which a specific agency is performing and say to yourself, "Is this the sort of case where the arm should be much longer, or is this the sort of case where the government should have tight control?" The answer to that, the solution to that, is in the drafting of the statute which sets up the agency. If the arm is to be a short arm so that you have a policy direction coming from the minister, there should be a statutory provision which says the minister is entitled to make a policy determination and to put that before the board and the board will take that to be conclusive. There is clear statutory authority for that sort of activity.
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If on the other hand the agency is to be dealing with matters involving disputes between individuals and that very same ministry, you may want to build into the agency statute provisions which would protect the chair in those sorts of situations.
Overall you could possibly create a situation where a single group of administrative judges who have independence could chair hearings of the sort where an adjudicative model is primarily required. This would be a step beyond the existing agency concepts we have here. You would be moving to the US model where they have administrative law judges who make a career out of judging sophisticated administrative cases.
That would give you a cadre of people who are like judges who would chair matters where it is primarily adjudicative, where the interests of the government are opposed to an individual, where you want to ensure that the public is protected by having a judge or an administrative judge who is indeed independent in that stricter sense.
It is a very tricky problem and you have to look at each agency, the task the agency performs, what is going on, what are the interests. Is there a public policy which has to be defended, in which case it is ultimately a government decision? If everyone knows that is the rule of the game, we will accept it. If we are dealing with the interests of an individual against the government, you want a slightly different forum. Trying to have a single rule to cover all agency members may be impossible given the complexity of that.
It may well be that as you look at the larger mandate you may have to address some of those basic problems, so that you say: "When we review applicants, we must have in mind the broad functions which they are to perform. We will want to ensure that the job specifications, the tenure, the salary, the method of appointment, the method of review and the method of removal is somewhat consistent with the task they are to perform."
Moreover, we want to ensure that the contractual arrangements made, the support, the resources given to these members are such that they can do their job. We will attract a better candidate and remove from them the fear of dismissal if there is a significant severance package involved so that they can do their function without fear of having to look for a job in a year's time.
Clearly the contractual relationship should be made much better and protect people who are entitled to severance, entitled to notice and all those sorts of things. That is one of the ways you can deal with that sort of question.
I am sorry to have gone on at such length. It is so difficult.
Mr Bradley: I want to deal with a couple of questions. I will start with your last statement about, how do you protect those who are on agencies, boards and commissions and what kind of severance do they have?
One of the difficulties that a government will face, obviously, is when it wants to get rid of somebody on an agency, board or commission, perhaps for what it considers to be a valid reason; whatever that reason is, it wants to get rid of the person. Often governments will not get rid of the person simply -- I will not say often -- because they do not want to face a package that will appear on the front page of one of the dailies or on one of the television networks that is a platinum handshake or something of that nature.
That is one part of it. Do you not see that as a problem if there are a lot of ways of a person leaving with a golden if not a platinum handshake? Governments are going to be inclined to leave people there and just ride it out.
The second part -- perhaps I should wait to ask the second part but I will put it in now -- is, what penalty can governments, if appointees were to give these undertakings for severance and so on -- what undertaking could a government expect of an appointee who in the middle of a hearing decides that he is going to disappear? That person may be key to a hearing that may be going on for a number of years.
Mr Campbell: Both are difficult questions. I think there can be some solutions, but first the issue of the platinum, golden, silver, bronze, whatever handshake, depending on the nature of the problem in the minister's point of view. It seems to me that the government and indeed the process would be better served if in fact you had somewhat consistent guidelines throughout all agencies, boards and commissions so that the departing member is not seen to be given a platinum handshake. It is probably defensible if everybody gets the same level of platinum.
You could have a situation with a combination of payment based on their years of service plus whatever additional months are required to reasonably expect them to relocate and find further work. If there were guidelines and standards, then that would seem to be a way of avoiding that sort of political problem.
Second, if you had someone on your board that clearly was not working out, for good and valid reasons -- I am not speaking of political reasons but good and valid reasons -- then the chair of the board would have a lot more flexibility and power to improve the quality if the chair knew that he could give someone six months' notice or whatever it was and get rid of him. It would save an enormous amount of headaches and bad decisions, particularly in the regulatory field. So that would be of great benefit, as long as the guidelines are made and known in advance.
The real problem would be the issue where a board member, acting either independently or within that arm's length framework, doing his best to come up with the best solution to a problem he sees, deliberately, inadvertently, inevitably has a collision with the minister of the day. It seems to me that if that situation arises, you just cannot avoid the headlines. I think that may well happen. It might be possible in the sort of framework Macaulay suggests, in the council framework or perhaps before this committee, to have some way in which the individual candidate and the minister can have it out in some sort of forum. This is not palatable, particularly if you are a minister, but it may be in the public interest to have a forum where this can be canvassed.
I use the model of the review of the judges' conduct by, say, the House of Commons and the Senate. A judge is in position during good behaviour and can only be removed on address of the Senate and House of Commons. A judge who draws the ire of the government of the day would have a political forum in which he can express his views. His independence is assured in that way. Something perhaps akin to that could be worked out if it was felt necessary.
The second concept, the penalty: There is very little that one can do to convince someone who wants to leave that he should stay. In fact you may do yourselves more harm than good keeping him there. The trick with that, it seems to me, is to have on any significant matter which may run for two or three or more years -- I am thinking particularly of the environmental and energy hearings, which run many years -- a panel that is composed of enough members that they can cover in case someone collapses in the middle or says, "I've lost my enthusiasm."
It is inevitable that there will be some changes in personnel. I think the track record is probably pretty good in terms of people adhering to their commitments. Certainly the chair of an agency can look at someone's time commitments and look at the term of office and say, "No point appointing such and such a person; he has one year to go and this is clearly going to go two years." It seems to me there are other ways around that, including two or three members on a particular panel and clear statutory authority that the remaining members can proceed and that sort of thing. If it is all established, then you are away to the races.
Mr Bradley: That second part, the last point you mentioned, is certainly one that would be necessary, and that is that there be a clear direction that the others who are left on the panel can in fact make that decision. Because one of the sides, and there may be more than two sides in it, or one of the parties to the hearing may challenge the results of the hearing based on the fact that someone who has sat on a hearing for three years is then gone and the two others are there.
Mr Campbell: There are other ways as well that one could cover that. One would be by allowing a fresh appointment who could in a sense pick up what he needed to know by a reading of the transcript. That is a little harder because he has not really participated, but you might be in a situation where you have a tripartite board, with a labour representative, a management representative, for example, and a neutral third party. If the labour representative is lost to the board, then someone clearly would have to step in and we may have a provision like that. Again, there are ways around it, but it is an extremely difficult situation if a member decides not to participate further. It is potentially very, very difficult.
Mr Bradley: I have a concern as well, though I understand the reason, and you outlined it well, why you believe that the chair of a committee should have some influence, perhaps, over appointments, or some input──let's put it that way──over appointments and might even have some influence or input in the removal of someone from an agency, board or commission under the jurisdiction of the government. This is where the dilemma comes in, and you have not suggested that it is an easy situation; I realize that. I share the concern of Mr Kwinter that the chair can sometimes see it as her or his board.
To pull a name out of a hat, Mr Macaulay served, in many cases, the people of the province of Ontario very ably. It may be called the Macaulay board. I just used it because his name is here, but it may be called the Macaulay board and then it becomes fashioned in the way he sees it in that specific case. I am not suggesting on a personal basis for Mr Macaulay or any other chair. Is that not a danger, that in fact it becomes very dominated by the chair? I guess politically if you can control the chair, you can control the agency, or the chair independently may just feel that he or she wishes to control that agency.
Mr Campbell: I think that is a greater problem for the government, frankly.
Mr Bradley: That is right.
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Mr Campbell: Again, an individual in a position of, shall we say, partial tenure, six-year tenure, will of course have a major influence. More than that, if they are a strong personality and have a great expertise in a given area, they will inevitably play a major role. Their role will be greater than, with all respect, the minister of the day who walks into office and has to deal with massive briefing materials and make an instant decision on a case which has this much material. Their inclination will be, initially at least, to be influenced strongly by such a chair.
It seems to me that in a sense there is really no easy solution to that either. The appointment stage is not necessarily going to pick up personalities of that sort. In effect, if you have a sensitive board, you want a strong personality who can carry the board properly and run it properly and deal with the council and the heavy financial interests that are involved. You want someone who will perform at that level and you are not likely to get someone who is an instant deferrer to the powers that be under those circumstances.
If there is a major collision between the minister of the day and the chair, there are several ways in which that can be resolved and so on. One would be if there is a statutory provision which says that the minister can present some form of public statement or public determination on the interests that are at stake and say, to use the energy example, that for such and such a reason, the rate will be such and such an amount, that is it. If the statute provides for that sort of intervention and the accountability for that decision is in the political forum, so be it and that is the end of that issue.
Another model of course, as I mentioned before, would be to go the judge's model where a chair in an independent role is subject to removal only if there is some form of debate before a standing committee or another committee of the House.
In the middle ground, though, I think what you are faced with is a mess, quite frankly, where it is a question of personality, pounding the table, maybe public posturing and so on. It is extremely difficult.
It seems to me that it is inevitable that you are going to have some of that and it may be the price that one pays for a system which has that level of flexibility in it, where interests do indeed have to be balanced. It may be impossible in the short term to resolve that sort of issue through a statutory framework or through an appointment process.
Mr Bradley: Another plan -- if I ask it in the form of a question, I suppose it is such a leading question that the answer becomes obvious, so let me put it in the form of a statement perhaps that you can comment upon. I will put it in a question. Would you see a necessity for ministers, particularly of a new government, being extremely well informed of what role they can play and what role they cannot play without getting into trouble in the process?
I will give you some instances. There are some cases where ministers are involved in the decision-making process and then are the ultimate judge and jury of an agency. In other words, the minister makes the decision. Someone challenges that decision. It goes to the agency, but it comes back to the minister for the final determination.
A smart former assistant to a cabinet minister from years gone by may well go to court to point that out and therefore limit the powers of a minister in that specific case. I guess that education is required. The minister has, I suppose, to be either told he cannot participate in the decision-making process if he is going to be the ultimate judge, or you remove the minister altogether as an ultimate judge.
Mr Campbell: There are a couple of aspects to that. The absence of education is not just at the ministerial level. It is often at the senior level of the civil service as well, and often, unfortunately, at the level of the chair of a particular board. Many chairs get into an appointment without a lot of knowledge of the administrative law consequences.
It is not helped by the stated administrative law, which is indeed in flux, where the rules pertaining to one agency may differ drastically from the rules pertaining to a second agency, and a court interpreting the rules will come to some decision one day and the next day come to a different decision on slightly different grounds based on slight variations in the statute. It is a very thorny issue and it is not a question of having a quick, one-hour review of administrative law in which you get five or six principles across. It is a question of looking very closely at the individual situation. There may even be situations where the statute sets out a track but the track itself and the circumstances of the case are patently unfair, and so you will have the judges looking at this and saying, "While the statute says this, the common law is such that we feel fairness in this case is required." So with the best legal chart you can still run afoul of that sort of concept.
Clearly, there are a number of issues like that. One of the advantages which Macaulay saw to the creation of the administrative council was a forum to provide that sort of education at a variety of levels, including the senior levels of the civil service and the chairs of agencies. He also contemplated the creation of a pool of lawyers who were relatively skilled in the area and also looking at the various statutes by which agencies are created to see if the language can be made consistent and so on, so that you would try to minimize the statutory differences and create a pool of people who had greater knowledge.
One of the great difficulties with government lawyers is that they may be quite familiar with the law pertaining to their own agencies, but the administrative law covers the range of government, and so their advice may well be not as broadly based as it should be.
With respect to the direct education of a minister on a particular legal matter, then, you may fall into the area where it is essentially a political, not a policy decision, where they are reluctant to involve the legal people in the civil service. Under those circumstances there may be a legal prohibition against the minister obtaining his or her own independent legal advice, and there is quite a lot of case law in the extent to which boards can go to get advice and so on. So even asking for advice can be a difficult situation for a minister.
Again, one of the possibilities would be to have within the framework of the government of Ontario some form of council which could act as an advice giver in situations of that sort, where it would be clearly understood the guidelines which a minister must follow in asking for advice so that there is some common approach.
It seems, though, that the general principle of educating a minister in advance for that sort of issue is just not worth the time. The issues can be so complex that I think the best one could do would be to say to the minister, "Be careful in this area, but I am not sure whether you can ask me or not when we get into that area." So, it is indeed a difficult issue.
Mr Bradley: I do not know whether somebody else wants to ask a question, but I could follow up with a further question in this situation and get your comment on it. In terms of law or in terms of practice set down, there is one way of dealing with an appeal to cabinet; in terms of what some people would consider to be common sense, there is another. I will give you three quick examples of that.
The Ontario Highway Transport Board may make a decision that goes to the legislation committee for consideration, the appeal does, or the Environmental Assessment Board decision or the Ontario Municipal Board in certain cases, I guess, can still be appealed to cabinet. A cabinet minister is told, "Well, if you talk to somebody about this case, then you cannot sit in on the cabinet meeting and make a decision," which might well sound great legally; logically it does not, I mean, if it is the person who is complaining saying, "This is a problem and this is why we think you should overturn this decision."
The practice that was followed, I believe, by the previous cabinet was that if you had spoken to someone, if you had received direct representations from someone, you had to excuse yourself from the decision of cabinet and the person who is most knowledgeable, then, is removed from cabinet in making this decision.
I will just get your comments on whether you think that should be changed.
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Mr Campbell: There is quite a body of law on the role of cabinet situations of this sort, and speaking from memory is very dangerous in this area because of the technical nature of it, so if I can offer a general comment and then perhaps back off it if later on someone arrives and says, "My God, who told you that?"
Generally speaking, my own view on situations at the cabinet level is that you want to try to aim at common sense, not necessarily law. It seems to me that if the appeal to cabinet is really an appeal on policy aspects, that is to say, in the public interest, where do we balance the interests of these parties and these parties, knowing the cabinet is on the hook for the decision?
It seems to me that if the parties know all of this and the statute sets that out, then the cabinet wants to come to the best possible answer and it should take the best possible advice, and that includes whatever information they can get from anywhere. If, on the other hand, you are talking about a statute which provides for some form of direct appeal on the record on the material before the cabinet and that sort of thing, then you are into a setting which is more law in form, more adjudicative in form, and that is where it seems to me you would want to be more careful in hearing from other parties.
Right now I am involved in one of these sorts of appeals and the advice that I have given to the clients that I represent is to not try to lobby the minister in any way, just to back off and let the cabinet deal with the issue and so on.
The commonsense approach though, to my mind, where it is clearly a policy decision, would dictate that the cabinet make the best possible use of its resources. Now again it is a tricky question, you have to look at these individual circumstances, but that would be my leaning in matters of this sort. It is wrong to take a general rule and try to apply it to all situations, particularly if there are quite significant differences in those situations.
Mr Bradley: Would you have any comments on -- in the middle of a process or perhaps at the beginning of a process, but the process is under way -- the governments starting to change the rules? I do not want to be specific because then we get into issues, but I will try to go into Fantasyland here for a moment where governments decide, for instance politically, that they are going to -- I will give as an example, because I know the area, the Environmental Assessment Board, where there is consideration of certain matters and the government decides politically that it should not go in this riding or this riding or this riding and starts limiting the process or governments say: "This option is out. Even though there is a hearing under way, we have just decided this option is in essence out."
First of all, are governments allowed to do this? Maybe, if you do not want to give an answer to that question you do not have to, but you have been very frank here. Are governments legally allowed to do that? Ethically is another matter, I will not ask you on that.
Second, what is your comment on the process when governments start removing certain components during a hearing, certain options during a hearing?
Mr Campbell: You said that you would not like me to touch on the ethical side of it and I am sort of inclined to back off the whole thing.
Mr Bradley: You can touch on ethics if you want.
Mr Silipo: Your fee for today does not depend on the answer.
Mr Campbell: The issue, it seems to me though, is that if the government has given some sort of public undertaking, a certain process will be followed and the rules are changed in the middle of that, then there is a political sanction which the government may have to pay. That is going to be clear.
Second, the technical question would be whether the government changing the rules of the game, so to speak, in the middle of a hearing would taint that whole hearing process and invalidate it. That would depend on all sorts of things, whether or not the minister was entitled to intervene by delivering, say, a certificate of what the determination of public interest was, whether the rules were canvassed with all parties and agreed to, whether there was a statute passed that said, "This is what's going to happen." There might be a hundred and one different ways of having an effect on a hearing which is in midstream, and so if the minister of the day decided to change the rules of the game to attain a particular result or come to a particular decision, then you would need to have extremely careful legal advice on what the effects would be on that particular public hearing.
In any event, I would imagine the real price would be more political than legal under those circumstances. If there is room in the statute for the intervention of the minister as a party before proceedings, there may be other ways in which the same objective could be obtained. If there is room for the delivery of some sort of statement, there are other ways of doing it. If there is room for a cabinet decision at the end of the process where the final decision is made by cabinet, then that is another way of doing it. It may be possible to change the terms of reference of the hearing and in that fashion touch on new issues which had not emerged at the start. There may be all sorts of ways of dealing with it.
Mr Bradley: It gets back to the dilemma we all face and that is, who shall control the process, elected people or agencies, boards and commissions and courts, the fact being that agencies, boards, commissions and courts are considered to be independent and the process to be virtuous. The political process is not always considered to be virtuous but, on the other hand, there are many who believe that governments should make those decisions and live or die by them. It is a very difficult situation.
I remember when I was Minister of the Environment I always had to say, "I am probably the only one in the province who can't comment on this." When they would, for instance, select the Ontario Waste Management Corp site, it would be about 25 miles from my house and people would say, "Don't you think this is this or this is that?" and I would say, "I can't comment on that, because I don't want to be seen in any way to be interfering with the process and with the ultimate results of the hearings." I may have had some strong views one way or another on those but could never do it.
That is a difficult issue to address, because on one hand you are Minister of the Environment or Minister of Municipal Affairs, whatever it happens to be, and on the other hand there is an agency out there making an independent decision hearing all sides. I do not know whether I have decided myself where I come down on that issue, because I am very much afraid of courts taking over right now what legislators are elected to do and that the role of the Legislature and the responsibility and power of the individual legislator have diminished considerably since I came into this House almost 14 years ago.
The Chair: I seem to recall you commenting on that site selection in the House on occasion -- in a positive way, as a matter of fact.
Mr Wiseman: I would like to ask a question. It is along the lines of what you are talking about, because I do not necessarily agree with what Mr Bradley just said. Given that the Charter of Rights and Freedoms has the notwithstanding clause, does that not give the power of any legislative body the right to do pretty much whatever it wants to?
Mr Campbell: Yes, and if the experience in Quebec is any guide, there is a political price to pay for that and that of course reasserts the ultimate sovereignty of the Legislative Assembly. The charter in a sense is a balancing act. It says legislatures can do certain things apart from these basic things, but they can also overturn the basic things under these circumstances. So you have the balancing act going on. I am not an expert on the Constitution or the charter, so beyond that general comment I do not really want to go.
Mr Wiseman: I was thinking along the lines with reference to the agencies that the government has jurisdiction over, that ultimately the buck stops with the government in power, in that if it wanted to exert it it has the right to exert it.
Mr Campbell: Ultimately the responsibility for the work of agencies is with the government, yes. So if the government finds that the particular agency is not performing, or is creating political embarrassment, or for whatever reason, ultimately it can do what it needs to do to resolve that. That may include passing a statute which says, "Sorry, agency, you're all fired, you're gone, no more." There may be a political price, but that is certainly within the realm of possibility.
Mr Bradley: It comes down surely on that issue to deciding there either is a process that is independent or there is not. Do not pretend it is not, then. All I am saying is, I had lots of views on a lot of things that were happening, but there is a process there and if the process is to mean anything, the politicians cannot get in the middle of it and start saying politically, "It's not going in this riding," or, "It's not going in that riding." You know, I could have said politically, "I don't want the OWMC 25 miles from my riding," but I did not do that, because there is a process there.
I am just pointing out, you know, you may think you get a political victory and you may be able to smile at the end of the day about the fact politically you said it is not going there, but then the process does not mean a damn thing. So either decide you are going to make it a political thing and say it is political──"We're not having it there and this is the reason"──or you let the process decide it, but you cannot have it both ways.
Mr Runciman, the Chairman, had a similar situation confronting his riding where judgements had to be made and I may have had some interesting points in that situation. I could not comment on those at that time. It could have been removed. If I thought Mr Runciman was a good guy. I guess I could have interfered politically and said, "It's not going in the riding," but since I knew he was not, I let it go.
The Chair: I got rid of it myself.
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Mr Perruzza: There is an assumption in what Mr Bradley has just said that the process is not political. I am not quite so sure that the process is not a political one, just by virtue of the appointments and by virtue of their dealing with essentially political matters. So to say that it is not political and to say that at some point in time the higher political body should not or could not possibly play a political role in the decision-making, I do not see that, I am not quite clear on that. But I do have a question for the representative here today. It relates to tenure and length of appointments. I would like to get a sense from you on what your feelings are on that.
Mr Campbell: The norm in Ontario is a three-year initial appointment with the likely prospect of renewal for a further three years. It depends of course on the statute, but that seems to be a normal or usual term. The shortness of the term and the renewal option in the middle of it is, from the point of view of the notion of independence, quite startling. If you take the view that these people are performing the independence role, it does not at all square with the judicial norm, which is essentially tenure until you are 65 or 70, whatever it is. So there is quite a disparity as you look at it. Perhaps the justification is that in many of the boards you want to have some turnover to represent different views from time to time to have some sense that there is public input. Views change and so on so that you want to have a flow of people through. It is not quite the same world as the judge's world, so you can expect and want to have the views of representative groups and so on so that there is some justification for that limited tenure.
Also, in many cases the specialists on the boards will have ongoing careers in their line of work and will be leaving a job or a career and doing the board work for a while and are quite content to go back to their jobs. It is part of their overall career path. But clearly, your point is extremely well taken in the sense that the whole issue of tenure has to be thought about as part and parcel of the whole appointment process and the whole process of quality of agency performance. You may have someone who does a first-rate job, has learned all there is to know about an area, is an excellent decider, sensitive to the political issues -- and you are right, there are political issues involved -- who, having mastered this and undertaken a huge learning curve, is at the end of the sixth year. So all of a sudden is this to be lost? It seems to me pointless.
On the other hand, as you say, you may have someone who after the first year finds himself to be completely at sea, has angered everyone else on the commission and has created political uproar in the House. So you may want to have a mechanism to get rid of someone a little earlier than that.
The whole issue of tenure is part and parcel of the proper working of the boards. You have to look at the nature of the board, the nature of the task it is to perform, how tenure fits with those criteria. It is not enough to say six years is too long, too short. It is an arbitrary number which happens to have been chosen, but it could well be extended or reduced, depending on all sorts of circumstances. That is the best I can do. I cannot give you a specific: "I think it should be seven and a half years." I cannot say that.
Mr Sutherland: I wanted to come back to Mr Bradley's point, because he left me with the impression that work of commissions either has to be independent or it has to be a political process. You have to decide one or the other.
In terms of my concern about the public faith in the process, I was just wondering if Mr Campbell could comment in terms of the fact of when you combine that. I specifically refer to when board decisions are appealed to cabinet. From experiences that groups have had in my constituency, there seems to be a real concern about that entire process. Really, if anything creates a degree of cynicism and lack of faith in the process, it is that type of combination. It is very hard for people who do not follow the political process or follow government on a regular basis to differentiate between the two.
Mr Campbell: I agree with you that public perception is an extremely difficult one because of the nature of the terms that are used and the tendency of people to confuse agencies with courts and the nature of the language. "I am independent," which means "I am above this political fray," has a non-political aspect to it. So the language itself is a little confusing. I think the better term is "arm's length," which suggests the link with government and an element, a degree of independence. But it is indeed an extremely confusing area.
The public perception that an appeal to the cabinet necessarily involves a political decision has both pros and cons. There are usually some people who support the decision, are pleased that finally the cabinet will have a chance to respect their interests. There is that sort of process as well.
It seems to me, though, that if at the outset of a regulatory process, like the location of a waste management plant or something of that sort, the track is well set out so that people know there will be a series of discussions and an examination of the evidence on the pros and cons, the technical side of a decision, and if they know there will also be a political decision because the issue affects the province as a whole and they know that at the outset, that starts to reduce the apprehension they might have if there is a sudden decision by a minister on his own initiative to say, "I'll scrub the results of this work." If the process is set out, I think people tend to accept it.
Second, if the process is set out and there is room for consultation at various levels, including writing letters to the editor and appearing on television, appearing before the board as a party and then lobbying cabinet in some way, then also people have a sense that there are ways in which they can accomplish their own objectives, not necessarily a bad thing.
The issue of the way in which cabinet deals with matters is an area which could possibly be looked at so there was a clear guideline on what is going to be before cabinet, who can comment on the material, what right of response is there and so on and so forth. Right now there is not an awful lot on that process and it might be useful to have that process set out, explained in greater detail.
These are some of the considerations that go into it. There is no quick, easy definition of independence. You would have to read it in the context of the particular agency, and it is very hard to get that across to the public.
Mr Grandmaître: You worked very closely with Mr Macaulay. Can I pick your brains right now? Mr Macaulay recommended, or put a lot of emphasis on, better training or training of not only chairpersons but committee members as well. What did he have in mind as far as training is concerned, seminars or what? Trained to do a specific job on a specific ABC, or a general training?
Mr Campbell: In his report there is quite an extensive series of chapters on the training and some sample seminars and sample course outlines and so on. Quite a lot of time was spent on that. He found that there was very little training; most training was on the job. Many agency members, of course, will bring to an agency their own expertise, but there were several different types of training required.
The first is the specific training in the subject matter of the agency, and often you can only get that through experience and by listening, by your own reading, possibly by having seminars, lectures, reading lists given to you by experts in the field in a generic sense.
The second area of training is for all agency members everywhere, and that is essentially how to be a good agency member. That, if I can outline it very briefly, would involve what the hearing process is, basic rules of evidence, what agency members can and cannot do, seminars on mock hearings, what can go wrong -- you have a hearing where every conceivable matter can go wrong -- and so on. So he contemplated a series of training seminars.
Right now, because the agencies have perhaps 10 or 20 members, it is uneconomical to put on a seminar of that complexity for one or two people. For that reason, he recommended that this council act as a training body and would pull together all those members who are in their first year of appointments and say, "Today and tomorrow we are having a seminar on the 10 things you really need to know to get you through the next six months, and then we'll have another seminar on the next 20 things you need to know." He was saying, "Let's co-ordinate this and make sure that we are not duplicating and wasting time and so on." There is quite a detailed overview of the education.
The Chair: Do you see any problem with the appointments secretariat carrying out that sort of function rather than the council, as suggested by Mr Macaulay, being responsible for that sort of thing occurring?
Mr Campbell: When you say the appointments secretariat, do you mean the secretary of this particular committee?
The Chair: Yes. Out of the Premier's office, I am talking about.
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Mr Campbell: I see. I am sorry. I think it is probably largely a question of resources. I do not know that it needs to be apart from the government. The council which Bob Macaulay was recommending was indeed part of the government structure. It was not an Ombudsman-like body or a freedom of information body or a Provincial Auditor body. It was part of the government operating staff, taking some of its staff from government, so that if some other group within government wanted to do that, certainly to my mind there would be no technical reason why it could not. I think the real issue is resources.
Mr Grandmaître: Does that mean that we can read from Mr Macaulay's recommendation that we need more full-time people?
Mr Campbell: It depends on the nature of the board. If you have a board with a very heavy case load, then clearly you may need full-time people for reasons other than training. If you have a board that hears two or three matters a year, you would not need a full-time person for that.
I think the real issue is, do the people who make the decisions on a given board have enough technical training to deal with that issue? It has to be given in some form or another and if they are not given anything, whether they are full-time or part-time, the process will suffer.
It seems to me that the educational component is a very significant component of the whole appointment process. If the aim is to approve the quality of decision-making, the quality of board performance, more than just the appointment process has to be looked at. Education is key to that as well.
Mr Sutherland: Just to pick up on some of the training aspects, you made reference to the way the Quebec system is set up and I did not get a sense whether you were endorsing that system or just outlining it. One of the things pointed out in there was that people should have at least 10 years' expertise in the commissions.
Is it your opinion that most of the government commissions -- I guess this is naïveté on my part; I am still learning all these commissions -- in general government commissions, more than ad hoc committees, require people with expertise in that area? I am thinking in some cases that maybe the problem is that you have too many people who have been part of the process, so then you need someone outside who does not really have a lot of knowledge on that but may be able to take everything in and make a good assessment.
How should the committee as a whole look at that process within the context of how Quebec has done it and just how should we be looking at appointments in general?
Mr Campbell: I should clarify that I was not endorsing the Quebec model. I was just drawing it to your attention.
Mr Sutherland: No, I did not think you were.
Mr Campbell: They have grappled with this to some extent, so I think their experience and their recommendations might be useful, just to be looked at as a model.
The actual wording, which I should read to you, is that the tribunal which vets people would ensure that there is an obligation on the part of the candidates to have a minimum of 10 years of professional experience relevant to the position to be filled. This would mean, for example, if you have a board where there is a heavy legal component on process or whatever, you would want to get a practitioner who had practised for 10 years. That in my mind would not be necessary for absolutely every tribunal. It seems to me that the role that many tribunals have as their purpose is the canvassing of a variety of views, and looking for someone with 10 years might well close off a good range of candidates. So I do not think that is an absolute criterion.
What you essentially want is someone who has the requisite professional skill for the task of that particular board, and it may be that for a board you need a range of skills and no one can be expected to have all of them, but the mix on the board will have all of them. That is what you are looking for. You would say: "We need a lawyer, we need an economist, we need a doctor, we need whatever. Let's get them here so that we have this range of expertise."
The problem of a board that has a particular mindset, where there is a need to adjust the views of that board, or the board has fallen into habits which are not conducive to good process or whatever, there is nothing to prevent a suggestion by the minister to the chair of the board at the monthly or annual or whatever meeting there is: "I think something can be done about your process, I've been getting complaints. Would it be advisable for you to get some outside consultants to look at the way your process is going on? It might be a good idea for some of your members to have some counselling on how to deal with difficult witnesses."
There may be ways in which that sort of thing can be remedied, short of a complete house cleaning. If, on the other hand, the board has got to the point where it has such a mindset that justice is not being done, then clearly only through the removal of people and the fresh appointments of new people can we remedy that. There are a variety of ways in which you can deal with the problem.
Mr Sutherland: Then is it a question clearly of having a clear mandate for the agency, board or commission to know whether you specifically need someone with expertise or you need someone who can handle the committee and the process in a professional manner.
Mr Campbell: That is absolutely correct. When you look at your own list of candidates in the course of the next six months, one of the key problems you will face is taking the credentials as they appear to you and saying: "Is this body of credentials going to meet the needs of that board? What does that board really do? Is it more than just an expert lawyer? Is it some expert lawyer with some knowledge of some other area?" But more than that, "Do they have the capacity to listen?" or "Do they have the capacity to listen politely?" which is sometimes different and "Do they have the capacity to get the logical sequence right?"
Mr Sutherland: So then it should not just be a question of technical expertise in a specific area.
Mr Grandmaître: Common sense.
Mr Campbell: Common sense, exactly. Politeness, knowledge of the basic legal principles and so on.
Mr Wiseman: This raises an interesting question, in my mind at any rate, that for us to evaluate a candidate properly, maybe we as a group should know who else is on that board and what skills they have in order to make a judgement as to whether that person is going to fit into there or whether the skills he has are redundant and not really suitable.
Mr Campbell: That could be the sort of question you might put to the chair of the board if you have an opportunity to interview the chair of the board. But it might be, in the short term, because you are dealing with a six-month mandate, a six-month trial period, to ask that the minister who intends to appoint someone verify that they have done that sort of background, that they have assessed the needs of the board, assessed the type of work to be done and in effect said, "Our view is this person meets these basic qualifications." It is a tricky little point because the nature of board work is such that the minister might not necessarily know an awful lot about it, so that is an aspect of the problem which I think may emerge in the next several months.
Mr Kwinter: If I might just comment on that, in my experience, both as the Minister of Financial Institutions and the Minister of Industry, Trade and Technology, particularly at the Financial Institutions and Consumer and Commercial Relations ministries, I had lots and lots of boards. Generally what would happen is the chairman or the deputy who was responsible, to whom that board reported, would call and say: "There are some vacancies coming up. We need somebody with this kind of background."
We would be looking for a specific person with those qualifications. They would say, "We need an accountant" or "We need someone with some legal background," or "We need somebody with some expertise in whatever it is." We would then restrict our searching for that candidate to somebody with that qualification. Once we got that person, then it was a matter of going through the process and passing it on to the Premier's office to make sure they were happy with it or, as it would turn out, coming to this committee. This committee, I do not think, should decide whether or not that person is really needed for that capacity. I think the question is, "Is this person suitable?" having identified that that particular skill is required.
As I said yesterday, there are lots of boards and commissions where the only criterion is that you represent the public. As long as you can stay awake at the meetings, that is generally the criterion that is used. But, as I say, each one has to be dealt with individually.
The Chair: Is there anything else? There are no further questions. Mr Campbell, we want to thank you for a very interesting and helpful contribution this morning. It is most appreciated by all members of the committee.
Mr Campbell: I thought perhaps I might give Mr Pond that reference to the Ouellette report because there was quite a lot of material there which might be of use. I can send that along to him tomorrow or the next day, if that is okay. I only have one copy with me this morning.
The Chair: If you could stay around for a few minutes following the adjournment, the clerk would like to speak to you briefly as well. Before we adjourn for lunch I just want to remind members of the subcommittee that we are going to be meeting next door for a luncheon meeting, starting at noon hour so we have time to check on the Gulf crisis before we eat. We will adjourn until 2 pm.
The committee recessed at 1143.
AFTERNOON SITTING
The committee resumed at 1409 in committee room 1.
FELIX HOLTMANN
The Chair: Our witness this afternoon is Felix Holtmann, member of Parliament, former chairman of the standing committee on government operations in the federal House and currently the chairman of the standing committee on communications and culture. Welcome, Mr Holtmann. We are pleased to have you with us. I am glad you could take time out of your schedule to be here.
I think you have a general idea of what we are trying to do with the new standing order for this committee and a broadened mandate to take a look at order-in-council appointments, to review them and make a recommendation in the Legislature. We have been discussing this for the better part of this week, and we felt it would be important to have your input as someone who has had experience at the federal level with a somewhat similar process. If you could let us know how you think the process could be refined and improved upon, the kinds of questions, perhaps, that members should or should not be asking, feel free. I will turn the floor over to you.
Mr Holtmann: Thank you very much for the invitation with regard to this particular subject. Leaving Ottawa today was a different kind of feeling than when I normally leave, with all the activity taking place.
However, the area of order-in-council appointments, as we call them, and our review of them came about, as you may or may not know, with the reform of the House of Commons by a report some couple or three years ago. We called it the McGrath report. It changed the way a lot of things have happened in our House of Commons, in our national legislative building, with respect not just to committees but to the point where we now elect the Speaker. I understand these activities are moving themselves into the provincial Legislatures.
So there is quite a bit of change going on. I was fortunate enough to be able to be part of some of that change. When it comes to committee work and the powers we in our committees in Ottawa have as opposed to what we used to have, we have come a long way, I think, in even a couple or three years. My general viewpoint on that is that it is a welcome change for me as a backbencher. I am sure there are many in this room who felt they have not contributed to government other than to make the odd speech in the chamber or vote when they are supposed to vote. It really, in my view, takes some of the partisanship away. Some great work is being provided and information offered with respect to policy.
At least in Ottawa we are finding that the chairmen of committees are not paid like the parliamentary secretaries, but the media come to them more quickly than they do to the parliamentary secretaries, because what they are offering and recommending to the House often now carries quite a bit of weight. It may be argued that this exercise is moving us closer to the US system of government. I have often spent a lot of time watching the standing committees of the Congress and the power they carry in affecting legislation and the way Congress governs, as well as the Senate. It has brought me to thinking that we have to change. Canada is sometimes slow in changing, but here we are moving in the right direction, I think. I applaud legislators like you in Ontario for trying to make that change to allow your elected representatives to have more input into the way this province is governed. Clearly, that will happen by the kind of changes you are engaging in.
On the specific matter of reviewing these appointments, it was not done until we changed with the McGrath report. Maybe we have been a little slow to pick up on it. I happen to have been the chairman, as you noted, of government operations. Some very large appointees under this new power of committees were referred to us according to the standing rules. It is a funny thing. If you look at the numbers that were referred to the committees I chaired -- Mr Radford is here; you may have some discussion with him later -- several hundred appointees get referred to the committee. We are under no obligation as a committee necessarily to review them, but that option is there. Generally, it is exercised when someone in the committee hears a name that everyone knows.
I think back to Dalton Camp. All of a sudden we hear the name Dalton Camp. Everybody understands that he has had some political leanings, so the committee members thought, "Well, we better have this man before the committee to review his appointment, because it's one everybody would come to hear." Yet there could be a John Doe carrying out equally as important a job, but somebody does not know him. Every committee member gets a copy of the order-in-council appointees. He looks at them and does not know the person so he does not get too excited.
I am not sure we have been able to accomplish all it was intended to yet. I can give you other examples I was involved with: Don Lander, president and chief executive officer of Canada Post Corp; or Mr Spectre, who is working with the Prime Minister. I can think of a number of others: Mr Veilleux, who is now the chairman of the CBC, or the president, Mr Watson. These all came before the committee and were recommended to be reviewed because they were big names and they earn big salaries. The committee deemed those very important to be reviewed.
So of the many hundreds who came forward, I suspect we did about 20-odd reviews over the last few years in which I was involved. We know from our standing orders that we could recommend that these individuals, men and women who are getting these posts, are not satisfactory if that were the committee's decision, but obviously it does not necessarily carry any weight. I am not sure just what you have proposed in that particular area. However, I will just give you my own impression of how the change should continue.
I believe it should be mandatory that the very highest appointments -- I am talking about chief executive officers of different corporations, where certainly large salaries are involved -- be reviewed by a committee before the appointment is accepted. That is number one. I say that because sometimes the committees, in their ability to act independently of interference by the elected government, may find out and bring some information forward that the government may not have known about or to which consideration was not given which may make that appointment unacceptable to the government.
I am not saying that the committee should be able to witchhunt, but as I have viewed the US structure from time to time, they have the power to reject and veto the presidential appointment. I do not know if we want to go that far, but certainly I think a committee should have the right to point out that it feels there may be a shortcoming or an inadequacy of an individual to carry out his post.
I do not know how often that may happen, but I believe there should be a designated group of individuals who are referred to committees. This province has boards that get appointed by government, and some of them are not even paid; they are just paid a per diem for days they meet. I do not think you want to get into that category. There is patronage there, but someone said to me: "What's wrong with patronage? The country has been running on it for 137 years now." Maybe we should not get too excited about that, but I think the review of individuals, of their acceptability and capability of doing a job, especially when we know some are receiving up to $200,000 a year, is necessary. That is not an insignificant amount of taxpayers' money to be paying someone. Talking about the president of CBC, that is sort of his category. I do not know how many of those exist in Ontario, but there may be some pretty highly paid people.
The fact is that I think legislators like yourself and myself should have the right, in certain instances, to review these appointments, maybe sometimes just to find out what the individual will bring to his new task, what he is going to bring to the position and how he is going to make it better for the constituents we all represent, or how he is going to get it out of a loss situation. There are all kinds of reasons you want to point out which are on the record, and I do not think there is anything wrong with that.
As I say, we are probably going to recommend changes to the way we operate, because we have a body that continually looks at the way things are being conducted. Of course, in most cases, you need all-party support to make these kinds of changes in terms of how the bodies of the House of Commons and, of course, your Legislature work. I do not know what your process is; I have never been a provincial or municipal or civic legislator. I went right from pig farming to becoming a member of Parliament. I know how to handle the hogs, but you know --
The Chair: No similarities?
Mr Holtmann: Sometimes; you never know. They squeal louder.
These are important changes you people are involved with and I deem it to be very important. I hope I can learn something from the way the Ontario Legislature intends to work; maybe we can examine our ideas and adopt what works for you. You do not want to make it so cumbersome that some poor chap or lady who got appointed never gets there. I think it has to be workable, yet it has to not restrict the rights of Legislatures to review certain cases at very high levels, a person who is going to be running a certain institution.
I do not have much more to say. I am certainly open to questions. I do not know all the ways you are operating the situation, but I would be happy to respond if I can.
The Chair: I am sure there will be a lot of questions.
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Mr Kwinter: I am curious to get your reaction to a couple of things. I think you are right in that the tendency is that the only sort of appointees who would draw any kind of attention are either those who have a high profile of their own -- you have mentioned someone like a Dalton Camp -- or the position is high profile: chairman of Ontario Hydro, chairman of TVOntario, chairman of some institution that, because of its nature and because of the salary attached to it, would get some attention.
As a former cabinet minister, at every cabinet meeting there are orders in council that are approved and most of them are people who are literally not known to anybody in the cabinet room, even the Premier, who quite often used to say, "I haven't the faintest idea who these people are." But there was a system whereby they came up, and the only ones who would really attract any attention were those who, because of their personal notoriety, fame, whatever, were known -- they would mean something to somebody and someone might question it -- or the position was of sufficient profile.
One of the comments you made was that there should be a mandatory review of positions, not necessarily because of a high-profile person but the position. I was curious to hear you say you would review them but that you really would not have the authority to reject them, that the whole purpose was just to review it and convey to, in your case the Prime Minister's Office, I guess, that you have these concerns, but it was still up to the Prime Minister to say yes or no and that it was not the role of the committee to make that determination. Could you expand on that?
Mr Holtmann: First, as I indicated, we went a long step forward when we got the power to review, which was not there before. As I understand it, before the McGrath report standing committees never reviewed an appointment at all. Now we have the ability to review.
You are absolutely right. Most of these people take their positions and probably are on the payroll before they even come to the committee, mainly because there are recesses and there is activity to take place. I think a step forward would be that before anybody enters the workforce in one of these positions, administratively or in any other capacity -- I am talking about a certain level of appointments. I am not talking about people who are put on a health board or hospital board. I am talking about very high levels which in my view should at least have a review by a committee and recommendations can go forward, unless we move it completely to the US system where the committee has the power to reject that appointment. If anything negative is pointed out about an individual's capability or background, with respect, that would create, I suspect, a difficulty for the Premier or whoever is in charge of making these appointments, and therefore they may be reconsidered. It is a hell of a lot better doing it that way, in my view, than just having a nice little discussion to find out what the guy eats for breakfast or if he can smile and be courteous. It makes the committee act in a way like: "Well, hell, this guy or lady is going to be there anyway, so why bother?"
So I think the committee should have the right to at least recommend -- as we can: we can recommend -- and the House does not have to adopt that recommendation, it can ignore it. But I think you can point out some problems with an appointment in advance of his being there. We have not got that far yet. I would like to see us do it, on certain sectors or crown corporations which we have a right to review. I do not know which ones we would be talking about. That would have to be decided, I suppose, collectively, which ones you would want to consider a negative recommendation or a positive recommendation, whatever the case may be.
I can recall a couple of reviews we had on orders in council where the opposition would not recommend that the individual take the job. However, there was no report anyway, It is just that we had a review. Of course, the media picked it up; it is open in a public review. Some of these things get reported, and I suppose maybe there was a little red on some people's faces.
Other than that -- that is a perception thing that happens -- I would like to see that on certain levels, like the ones I suggested, chairman of Canada Post Corp or the CBC, I would like to see, before they get there, that it be given as an order-in-council consideration for appointments for the committee to consider. I think that would make it far more valid.
The idea of whether you are going to say no and it has to be honoured is another question. I do not know if we will be able to take it that far. Maybe if you try it in Ontario and it works, I will bring that back to Ottawa, but I have some doubt that the Privy Council that operates the government would want to have that kind of a restriction on it. I do not know what the feeling is. If you had been a cabinet minister who sat on the other side at one time, you might have an opinion on that.
Mr Kwinter: If I can just follow up on that, one of the problems you have under our parliamentary system is that the only thing that gives the Prime Minister or the Premier his real power within his caucus is the old cliché that he has the power to appoint and to disappoint. That is what gives him his power. He sits down at the cabinet table and he is the one guy by law that can make someone a cabinet minister or not, so effectively he is the 51% shareholder.
As a result, you can really get into a cabinet meeting, there is not a consensus, there is not a vote, it is that kind of a collegial responsibility, but in the final determination, if you are in a cabinet of 30 people and every single person has an opinion that is different from the Premier's or the Prime Minister's and if the Prime Minister or the Premier wants to prevail, he prevails. It is not the matter of a vote. He decides, "That's fine, I've heard all you guys. This is what we're doing. If you don't like it, too bad," because, by statute, he has the power to appoint, which means that everybody who serves in cabinet serves at his pleasure. That is what gives him his power.
The concern that I have is if there is a committee, whether it be at a provincial or a federal level -- let's say in your committee -- and an appointment is forwarded to you for review and the committee unanimously recommends that this person should not be appointed and the Prime Minister says, "Thank you very much. He is appointed," what do you do as a committee? How does the committee function after that?
It could happen at the provincial level, where he said: "Look, I don't care what you guys say, I'm making this appointment. It's my choice, I have the right to do it and I'm making it. I'm prepared to take my chances out there, but that's it." Then you really get to the point where the committee looks at itself and says: "What are we doing here? Why are we going through this exercise? Is this just a make-work program?"
Mr Bradley: Do you want an answer to that?
Mr Kwinter: No, this is the concern I have.
Mr Holtmann: Let me just follow up, because I think you do bring out a point. Let's take a John Doe who has this appointment by the Prime Minister and it is found out by somebody who knows that this guy has not paid his bills with regard to some personal matter and he is being taken to court and so on. It could be something to that effect, yet he is going to be given a trust position. That may not be a criminal element until he is proven guilty, but if that be pointed out and the Prime Minister still wants to go ahead with the appointment, obviously he would want to make sure he checked out a fact that he might not otherwise have.
That might not be the best example, but there may be somebody with a security risk background, there may be something that was brought out. Obviously if the committee recommends that he not be appointed, there must be, I would think, a reason given, not just because we did not like the way he parted his hair. I cannot imagine a committee giving a no recommendation without some evidence that it was able to find to substantiate its recommendation. Should the Prime Minister or the Premier still go ahead, then obviously he would likely come under some criticism by the public. That he would have to live with, I suppose.
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Things like that would be the way I think it could operate. Sure, he is the ultimate power in appointing somebody, unless you want to put a veto in. I do not know if it needs to be unanimous, if it is like a court of law where you need to have all the jury's unanimous support to convict somebody or to make him innocent or guilty, that kind of an arrangement. I do not think you really want to go to that extent, but I clearly think that reasons would have to be given if a rejection is coming forward.
Let's face it, we are all on one side of politics here and we will play them out sometimes. Mr Pawley could be appointed by your present Premier to some post. It could happen. He might have to come before a committee. My goodness, you might argue that he could not run a province or something like that, and the other says, "But he is a very honourable man." You are going to, all of a sudden, have biased opinions of the guy and will not look at whether he can or cannot do the job.
I think you have to be a little bit careful in deciding whether a person may or may not be deemed acceptable to a committee, but if that happens, I think you are going to have to give your reasons and if they are unanimous -- I can tell you, we have had people before our committee where we had unanimously accepted their position and I think that is helpful too.
If a person can come and say, "I am going to be taking $200,000 worth of your money to operate this and this is the way I intend to operate it," it gives a comfort level to people in the committee. In some of these organizations it is not such blatant politics which we sometimes have. We hope it never happens, but I think we are all human.
It is an answer that we are still groping for. I do not know quite how to designate, first of all, who would be the ones that we should mandatorily review. But I also think it would not be a lot. They do not occur because sometimes these appointments are, at least in the federal government, from five to nine or 10 years, or seven years. I think they may be three-year, five-year, seven-year and 10-year appointments; maybe not 10, but nine. I am not certain now of all the categories, but it would not include a whole lot. They would not be that often, only as they come forward or decide to resign, whatever the case may be.
I think there is an area we could move in and also I would like to see the review before the individuals, especially in these categories, take the job. Then it really becomes academic. A guy is in there, he is getting his pay. We had that situation in fact with Mr Watson, the chairman of the CBC. He had a position and we reviewed the position, but the legislation was not even through in the House to officially make him the chair. It was really weird, yet I am sure he was earning his pay and so on. It was really quite different.
I only point out there are some things here but I would like to see that change taken forward. I do not know what other chairmen of committee in the House of Commons feel or what ministers feel, but I would think that is our next recommendation, something in that line.
Mr Sutherland: You mentioned earlier about the committee looking at information that might not have been available to the cabinet minister or the Prime Minister's Office when they are recommending that. I am wondering how you control that process. You suggested we did not want to go to the American system. How do you control or assess the information coming forward that maybe this person, from the example you said, has not paid his bills or some other problem without getting into the kind of personal mud-slinging that seems to occur at certain times in the Senate hearing process in the United States? I am just wondering how that is balanced off to decide whether the information is valid or not, that there are some problems with this person's appointment.
Mr Holtmann: Obviously, there may be instances where that might be difficult. I can only cite a person who was seeking a nomination once in this city to run for a federal party. I would not believe it, but it ended up that the individual claimed to have been a professor at universities and taught at this school and that school. If you had read what he was writing and if he was being appointed on the basis of information he gave, only to find all that information to be inaccurate, if somebody knew a person was going to take high office and knew he may have misled the Premier or the cabinet in terms of his capabilities and that was found out, clearly that is enough evidence to point out that they may want to reconsider. Sure, there is a personal consideration here and you want to be careful not to wrongly accuse somebody.
The other area of concern is whether the man or woman who takes the job has the necessary qualifications. There may be some evidence brought forward that in fact the person does not. It is better to bring it out before that person takes the job than after, I would think.
These are only a couple of areas. What about conflict of interest? I think, once again, you appoint people to take positions. Have they been thoroughly reviewed with respect to conflict of interest? We know all too well the number of ministers who get into trouble provincially and federally because of conflict of interest and lose their positions.
You would think if the cabinet and the Premier and the Prime Minister make sure that the people they appoint to become ministers, if they check that out -- obviously they have not checked very well, if you look through the last 20 years at the number of ministers who have had conflicts of interest and have had to lose their jobs. Maybe the committees should have looked at the appointment of ministers as well. I only point that out to you because it is not a rarity or the odd case. It is quite prominent, is it not? These are areas that I think committee members might want to consider.
Mr Sutherland: One other question I want to pick up on relates to the point that Mr Kwinter made about pressures, whether they be from the Premier's office and the Premier appointing cabinet ministers or from the Prime Minister's Office. I am wondering what suggestions you would have for this committee in terms of ensuring that the public -- you mentioned the taxpayers' money when they are making $200,000 a year -- has faith in the process.
Ultimately we are the servants of the public, but I suppose from Mr Kwinter's example and with you being part of the government side now and us being part of the government side, you are servants to two people: as a cabinet minister, to the public and, as he mentioned, to the Premier or the Prime Minister. I am wondering how the public can have faith in that process. Should the public have faith in the process you have, and based on what you have maybe been informed as to what is going to go on here, should the public have faith in this process provincially?
Mr Holtmann: In terms of making sure that the public is aware of the process, first of all. I think it is incumbent upon the government in reviewing these appointments or these nominees to inform them that they are going to be reviewed and by whom and they are open to anybody who wants to sit in. I think they should be publicized, because they obviously are going to hold an office or a position paid by the taxpayer in many cases. Once again, I think Mr Kwinter mentioned the fact that it is that prominent name that gets the nominee that the public has an interest in, more so than the person that may not be known that well, although he may hold a more important position.
I think the fact that you as legislators indicate that you have reviewed, that you can put it in your correspondence to your constituents and the government can indicate in many ways that it has reviewed these appointments by all parties, gives a level of comfort to the public, to our electorate that we are in fact doing our job as legislators and taking an interest in all things that happen within government bodies.
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It is a communications exercise that often we, as members of Parliament, do not get involved enough in. Then all of a sudden when something breaks out, that is when we hear the negative parts of it. I think it is important that this exercise be carried out and that the information be told to the Canadian public, whichever method is used, because hell, they elected you to come down here and me to go to Ottawa to represent their views and there is more to it than just standing in the Legislature to make a speech once in a while. You had better well tell them; otherwise they think you are doing nothing down here. I hope that answers your question.
Mr Silipo: There are a couple of areas I wanted to ask you about. The first is that in talking about the kinds of things that your committee can do at the end of the review, I got the impression -- I just want to be clear that I understood correctly -- that you do not have the right to make any kind of recommendation at the end of that process.
Mr Holtmann: We have the right even to reject, but there is no obligation on behalf of the government.
Mr Silipo: Right, so that is similar to the powers that we have been given.
Mr Holtmann: I think that is similar.
Mr Silipo: In your experience to date, have you been in situations where in fact the committee has rejected or has recommended against a particular appointment?
Mr Holtmann: It seems peculiar, but I think all those that have come before me have basically got full approval, except for one. Obviously we do not make a report if there is no recommendation to the government. We had Mr Veilleux come before the committee and there was no suggestion that his order in council not be honoured, so we did not make the report. I believe we only made one report. Is that correct, Norm? Did we make one report with respect to an appointment? I am just not certain. I believe we have had some considerations with respect to appointment.
Here, for example, is a report that we gave with respect to Keith Spicer. I am sure you all know that the chairman of CRTC has now left his post again. I will have to find out if we should review the guy who took over from him. I do not know if we liked him any better.
For example: "Your committee has considered the order-in-council appointment of Keith Spicer, chairman and full-time member of the Canadian Radio-television and Telecommunications Commission, referred to the committee on Monday 25 September...John Pennefather, government film commissioner, referred to the committee Tuesday October...Gérard Veilleux, Patrick Watson, referred to the committee. Your committee examined the qualifications of these persons and finds them competent to perform the duties of their posts."
I suppose we did not even have to do that. My point was this, though: We did, and I wanted the public to know we did. I think that is important. Obviously, if some members of the committee rejected that appointment, we would have maybe still reported and said it was not a unanimous report, which I think we have had as well.
I am just saying that we have not in fact rejected anyone, but we are just moving into this area and we have not gone fully. Here is another example. These are some minutes from our Hansard from our committee, I believe.
"Mr Boudria proposed to move that pursuant to provisional orders 103 and 104, the committee having examined the qualifications and competence of Mr Dalton Camp, the committee having concluded that the appointment of Dalton Camp was a partisan political manoeuvre" -- not anything that ever happens around here, I am sure -- "by the Governor in Council and that the effect of this appointment would be to politicize the Privy Council office thereby creating an unwanted precedent, this committee respectfully recommend that this appointment be cancelled forthwith."
I, the chairman, ruled the motion out of order on the grounds that it went beyond the scope of the committee's order of reference. So you see, if you want to put your order of reference in what you are proposing to do, then you would not be able to rule it out of order.
Mr Bradley: Hear, hear.
Mr Holtmann: We have some examples here, but once again, all these individuals I referred to and others whom we reviewed were at their posts already and that, with all due respect, I think is the wrong way of going about it.
Mr Silipo: That is fortunately one thing that is different here because we will be asked to review appointments prior to the people taking the appointments.
The other area I wanted to have your comments on, and we were talking about this in our subcommittee earlier today a little bit, is in the whole area of the nature of the kinds of questions one would ask of the people we had decided to review. My attitude, as I indicated to my colleagues in the subcommittee, was that I certainly did not expect we would ever all, as a committee, be able to agree on the nature of the questions we would ask, but it seemed to me that there would be some value in at least being aware as opposed to trying to guess, although we could probably guess relatively accurately at the nature of the kinds of questions that we might want to ask from the different perspectives.
Could you share with us any of the experiences of your committee on that whole area of the nature of the questions? One sort of specific, obvious question I know that members opposite will be quite interested in asking is the political affiliation. Again, my attitude so far to that has been that while I am not sure it is that relevant, in the end, if people want to ask it, they are going to ask it and so what is the big deal?
Mr Holtmann: Let them ask it.
Mr Silipo: I just thought you could comment on that, but on any other issues in terms of the whole question of the range of questions that your committee would ask.
Mr Holtmann: I think it is at this point that the chairman has to start acting a little bit like a judge under what I think could be a very sensitive review of a person's capability, integrity and so on. The judgement call would then, in my view, have to be the chairman's on appropriateness of a member's question to an appointee; obviously that could be challenged, at least in our committees, the ruling of a chairman, but I think, basically, where nobody is out to be on some kind of a witchhunt, I think we all have to realize that your question is very important because you want to establish the credibility and the credentials of an individual to do this job and I think, all being honourable men and women, we want to make sure that it does not get to be that kind of an ugly witchhunt which could slander an individual.
So the chairman gets to sometimes evaluate the appropriateness of one's question and that is a judgement call. With all due respect, it is a judgement call. I have watched the American system quite closely. We, fortunately, back in Ottawa can pick up Cable-Satellite Public Affairs Network and catch some of these live committee hearings, and I have listened for hours to the kinds of questions they would put to an individual in his desire to have his appointment accepted. I will tell you, they get pretty deeply into an individual's background and it is conducted very much as a High Court.
I think I have never had too deep a discussion of an individual. I have had some, but so far it has not gotten too personal. Now, this may happen and I do not know how I would deal with it on an occasion, other than that the chairman is to conduct it and judge the appropriateness of questions and that is really all I can answer at this time. You have to remember, all these things are being reported. You can pretend sometimes to hide under the immunity of your Legislative Assembly and for us the House of Commons, but one certainly has to be a little bit careful, I would think.
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Mr Wiseman: Basically, how much time would your committee have spent examining each of the candidates?
Mr Holtmann: I would suspect that we have not spent more than two hours on a review of an order in council at the most of any one particular candidate. Quite often, advance notice by a good week is given to all members of the intent of the committee to review. Every party has its research department, which wastes no time in digging up information pertinent to the particular subject. But I do not think I have ever gone beyond two hours with a review, and generally all the questions that could be put would come in a two-hour period, I would think.
Mr Wiseman: Do you have a time limit or would you just have an open-ended hearing?
Mr Holtmann: Our orders put time limits on meetings and can only get changed with unanimous consent. That way all kinds of dilatory motions do not interfere with what the intent of that meeting was, and that is the way I like to rule it. It is very effective because we have a meeting under a standing order to review an order in council. I am not going to conduct a meeting that says, "Let's talk about firing the guy at the CBC," and move that motion. You cannot do that with us unless we have unanimous consent to go beyond that time or unless we have unanimous consent to introduce a new subject for that particular meeting. That is how I manage to keep it running pretty clean.
Mr Wiseman: In your sense of having reviewed some of these candidates already, have you had a sense that perhaps the whole process has been enhanced in terms of having a better candidate or maybe a less partial or less partisan candidate, or are there still a lot of the old games played?
Mr Holtmann: I do not have the sense that as a result of the administration or the Prime Minister's knowing that some of these appointees will be reviewed, he will select somebody differently. I do not have that sense, but I have a sense that the individuals who are receiving these appointments have to explain themselves and what they are going to bring to their new positions to members of Parliament and members of your Legislature. For some of them that is even a difficult task and you wonder why. I can tell you it would surprise you how people are so willing to take a position, but when they are asked by government people like you and me, you wonder whether they should have come to take that position. So I can only say that it is a healthy exercise and you sure get a comfort zone from somebody who comes in there and seems to know the nuts and bolts of what he is doing as opposed to after it has happened, because the public also hears his response and says: "Why would he have been running that show? Why would they ever have appointed him?"
So as we move more into this, I think the questions will become more intelligent and the desire for the right answers will be there. Clearly, it might, by the people who are making decisions to appoint people saying, "You had better put somebody in there who is going to be able to do the job and demonstrate he could do the job, because he will be an embarrassment to us." So there might be that in the background, but I cannot think that a Premier or a Prime Minister would not want to appoint somebody to do the very best job possible. This is just another check and balance in the system.
Mr Bradley: Sir, would you not agree -- I guess it is a leading question when I say, "Wouldn't you agree" --
Mr Holtmann: I might not.
Mr Bradley: -- but I will put it that way and you might not agree. Would you not agree that if this exercise generically is to be meaningful and not simply window dressing or the appearance of some significant change, that you have to have three things?
First of all, you have to have the ability to review more than one nominee before a selection is made for senior positions. I am not referring to 5,000, because practically you cannot do it. Second, you do not restrict the questions that members of committee can ask. Third, you have to have the ability to reject the nominee. Would you not require those three before you could really have a meaningful exercise and something other than window dressing and the appearance of change?
Mr Holtmann: The restriction of the question, let me talk about that one first. Obviously, I do not agree that you could have an open-ended question to a nominee, unrestricted. With all due respect, I think that would be very unfair. A man's or woman's personal life could enter into this and I do not know that you would want to allow that kind of questioning, because it may be totally irrelevant. Unless you can prove the relevance. I suggest that you just could not have that take place at a level of deciding the competence of an individual, so I would be careful about the unrestricted questioning.
With respect to, if I understand your question correctly, whether to give it some credence and not just rubber-stamp the whole thing through, as I say, I do not know about two candidates, because obviously your Premier has somebody in mind for a position: he likely does not have two people in mind for a position. What you are then suggesting is that you are going to decide between the two. I did not think you guys and I were going to become an employment agency, you know, to decide which of the two is best qualified.
I do not think that is really what the intent of our reviews -- and maybe yours -- should be. I think we take the appointment given and we may want to find out reasons why it should not be, as opposed to trying to decide who is better between the two. As I said earlier, in my view we have to move it the next step, review it before it is a fait accompli. That is what I would like to see. If the Prime Minister still wants to go ahead, he does so knowing that some things have been brought out. If something happens down the road, we can say, "I told you so," I suppose. You see what I mean? But at least you were there.
I suppose you may have those situations. I do not know what particular agencies and groups you will be reviewing. I heard that a former MLA from the province of Manitoba could be eligible, I suppose, to look after your auto insurance program, for example. I do not know if something like that would ever come up for review. Who knows?
The Chair: What is his name?
Mr Grandmaître: Not a bad idea.
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Mr Holtmann: But one could say, "Is he qualified?" He may be very qualified.
All I am saying is, you do not want to start deciding A or B. I think you want to take the appointment and if there is some objection or if there are some problems with it, you may want to point them out and you want to recommend that to the government. But I think it should be before and I think we agree pretty well, if I understand people, that that would be the desirable way for us to move, especially in those categories where collectively all parties think it has the importance of that kind of review.
There are so many appointments, it is amazing the appointments that take place. There is an arts board that decides -- and they are appointed -- whether a picture is good or bad.
Mr Sutherland: Is that board being changed now?
Mr Holtmann: That is right.
Mr Bradley: The third part was the ability to reject the appointment and have the rejection stick.
Mr Silipo: Veto.
Mr Holtmann: That is a big power a committee would then have and I think it may tend to be chaotic, because on what basis are you talking about the rejection? What per cent -- the same vote of yeas and nays on your committee -- would cause a rejection? Is it a lot of questions or does it need unanimous support to be rejected? What is the thinking behind it?
Mr Bradley: The way we would do most things around committees is that the majority in the committee rules.
Mr Stockwell: Kind of democratically.
Mr Holtmann: It seems to me you are suggesting then that the governing party, which usually has the biggest percentage of people on a committee -- at least they do in Ottawa except for a few. I do not know about this one.
Mr Bradley: They do have.
Mr Holtmann: Obviously one would have to break ranks I suppose.
Mr Bradley: That is right, you always have to hope for one renegade if that is going to happen, and that does happen occasionally.
Mr Silipo: Or common sense, Mr Grandmaître says.
Mr Bradley: Those who are not aspiring to the cabinet, on the way out or something.
Mr Holtmann: Let me tell you something. I sat in committees in Ottawa and it happens quite often that governing party members break ranks on committees.
Mr Bradley: I guess the point I am making is not so much a quarrel with what governments do as really trying to set what you do and what this committee does in the proper context. To be a powerful committee, to really have the right to review, it seems to me that you would have to have the three that I gave you. When I say totally unrestricted, I suppose that is an exaggeration.
If you want to control this committee, your committee or this committee, there are three things you do. First of all, you control the fact that they cannot veto: you do not let them veto, so that is one control. Second, you let them deal with only the nominee the government has; therefore you can only deal with that person. Third, and a clever person who has been the chairman of something at some time or other would know this, if you can control the questions that are being asked, of course you can control what is happening in a committee.
Under those three conditions, it really is a very little change but there is an appearance of change -- and some good editorials and lots of nice things in constituency newsletters -- but the real change is not there unless you give the committee those three powers. I am not suggesting offhand that they should necessarily have that power, but that would be real change.
The Chair: Another difference in this committee versus the federal committee, and time will tell whether it is a significant difference or not, is the fact that this committee is chaired by a member of an opposition party, whereas on the federal level it is a government member.
Mr Holtmann: Yes, that did not go unnoticed by me. Of course, you were set up and structured to do these reviews, all the reviews that are associated with the government. Is that correct? Or would any other committee review an appointee?
The Chair: Not an appointee, no.
Mr Holtmann: So, basically this committee is struck with that task. In a way, I think it is quite clever to have an opposition member chairing this committee because it does it all -- and I am thinking about this collectively; I think it may have some merit -- where we are a standing committee. For example, presently I chair communications and culture, and all those appointees associated with those departments, and there are many, come before our committee. But you are quite unique and I would be interested in following this, how you will in fact live with this particular methodology, and it might be something we want to look at.
Mr Stockwell: I think I would like to question the committee you work within in Ottawa. I believe in examining committees. We often strike committees locally, municipally, provincially, federally, and they tend to go on for ever. No one ever examines whether in fact we need them any more.
I look at your committee now. You have been in operation three years, you suggest. If one were cynical and looking at this committee with a cynical view, not being that kind of individual, but suggesting that if you were cynical, you would look at this committee and say it has been established now for three years and you have rejected no one; you have only interviewed people who are in the job in the first place. So in fact they are doing the job when you are doing your review. No one has been rejected, and frankly, you do not think the Prime Minister or whoever makes those decisions really changes their attitudes about whether or not they would appoint somebody.
If you were cynical, you would probably say: "Jeez, here's a committee that's taken up a lot of time, spending a lot of taxpayers' money and it hasn't rejected a soul; nothing's changed there. The chairman of the committee does not think anyone is being appointed differently than before, and even when they interview somebody, the guy's already doing the job that they're interviewing him on, as to whether or not he's qualified to do the job."
How long do you think you would continue on with this committee: six years, seven years, 10 years, or is it for ever? Is this just the state of affairs in politics? Do you really think much is being accomplished, considering those three very important facts? I will repeat them again: No one is rejected, everyone is doing the job that you are interviewing about, and you do not really think anyone has changed his mind with respect to appointing anybody.
Mr Holtmann: I think those are really important questions. Let me deal with one you talked about, not as a third point but you talked about it costing a lot of money. I am concerned about the money we spend in government, and you are right, it does cost a lot of money. But let me put it to you in this way. I was very sceptical about it. I am going to continue to support the venture because we, as Canadians, are very slow to change our institutions and make them better. We are so damned hung up on tradition sometimes and it has finally come around where we have made a change.
Like I said at the outset, we never used to even consider an appointment. Now we are reviewing and exposing the man's capability, the woman's ability to do her job, knowing that we do not have the power to say no. But I suspect that if we stick with it, there will come a time -- I think we are changing finally -- to where we will have that, or at least move to the next step, and as you are attempting to do, review these appointments before the Prime Minister finalizes them. I think those are bringing us into a position where, after he has heard and reviewed the committee's review, maybe there will be some reconsideration as to who gets appointed. I think that is moving in the right direction. I would not want to stop the process now.
Maybe in approximately another six years -- and heaven forbid, I hope I am not there that long -- let me tell you that maybe nothing will change and one should review whether it is worth it. I agree. But I do not think in three years we have given it much time, considering how long we went without ever reviewing an appointment.
Let me tell you something: it is good for the committees to get to know who is running some of our corporations or bodies that play an important role in our lives, because in almost all cases, at least in the federal system, I can bring Mr Veilleux back in front of a committee any darned time I want to, or Mr Watson or Mr Spicer. I can bring him back and I can say to him or members of Parliament can say to him, "I don't think you're doing your job."
That is, in my view, a pretty important move that committees have the right to take and that never existed before. Committees, if you read the McGrath commission, have the destinies of their own operations; they decide, as long as it meets a certain sector of the standing orders. That, to me, gives members of Parliament a lot of power, not that they can say, "You must go," but they can ask the questions and get to the bottom of a problem, as we have been doing in Ottawa these days. I do not know if you have noticed.
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In Ottawa, people are appointed by the Prime Minister. I have no problem in asking Mr Veilleux how he is operating the CBC. That is a powerful tool today, a committee which was not there before. He was appointed and his appointment was reviewed, albeit not rejected. It had no power of rejection, but it was reviewed, albeit after the fact, which I would like to change.
I am not pessimistic that we already have hit a dead end. On the other hand, I think, we have demonstrated that some of our reviews -- you just cannot do them all. That is the other side of the issue. How many orders in council were there? A committee cannot sit down and review 1,000 appointments. I mean, that is really wasting time. You have to look at ones that are really important or at a high level of the pay scale or are of importance in the views of the government or the opposition or whoever makes decisions. I think you have every right to question these people. They are the servants of all of us.
I think that is the best answer I can give to you. I am not prepared to give up on the system, because it has moved quite rapidly. If you look at what has happened in the last 100 years, this is a pretty big move.
Mr Kwinter: On a point of information: I am a substitute on this committee and I have not really looked at the mandate. Does this committee have the mandate to do the kinds of things that were just explained, to actually call in people and review them?
The Chair: We have the option in terms of the other part, the other side of our mandate, if you will, to review agencies, boards and commissions. As part of that we certainly can ask the chairman of that ABC to appear before us, but to go after another, say a lesser light, if you will, on the committee, I do not think we have that authority.
Mr Holtmann: I do not think I could say I can bring back any order-in-council appointment, but anybody who heads up a corporation that is under the purview of communications and culture -- whether it is Telefilm -- the chairman and the president, the chief executive officers of those corporations can be called before the committees at any time it is deemed important enough to the committee. That is what was not there before the McGrath commission report. That is a lot of power when you think of it. It is a lot of power to the individual member of Parliament who now has the right to question.
Mr Frankford: In your reviewing appointees, would you question people about their philosophy or would people bring up their philosophy of what the agency should be doing? You mentioned art, for one thing, but one could think of many things such as, with the CBC, whether it should be profit oriented or otherwise. Is that the sort of thing that is appropriate?
Mr Holtmann: Absolutely. I do not have Hansards from some of the appointments we have reviewed, but I find very often that the members of Parliament really want to know what an individual thinks and feels with respect to the position he is going to take and what he is going to bring to it and what his thesis is with respect to that portfolio. Yes, that very much seems to be the first question.
I can remember some of them so well. I remember Mr Spicer's appointment to the CRTC. He was a journalist and one who was fairly renowned in the media field. How his background would apply now to a body that has a tremendous amount of power in regulating the communications of this country, I can recall, I think, his responses and his ability to respond and understand that particular position was a very impressive response to the committee. Those are the kinds of questions that members ask.
Mr Frankford: Would you see committees going as far as rejecting people?
Mr Holtmann: I do not have the feeling other than the one, I think, by Mr Boudria suggesting that Mr Camp was only there to politicize the Privy Council and therefore his motives were totally wrong to be there. Obviously that was not acceptable.
Ms Haslam: Would you not agree --
Mr Holtmann: I will try.
Ms Haslam: -- that a couple of the benefits of doing it in this way are public access in the scrutiny of this process, and the fact that we are able to go into a little more depth in the criteria of the expertise, the experience and the qualifications of the candidate?
Mr Holtmann: You are absolutely right. It seems to me all too often we forget about the qualifications and we wonder if the person has been appointed sometimes because of politics. It always comes around. Everybody has every right to have political motives and leanings, but that does not necessarily make them good managers or necessarily make them able to run some of our big corporations. That, I suppose, is the committee's biggest mandate, if they can, through their questioning, find out whether the individual is very capable of doing his job.
But it is hard to sit back in judgement on somebody to do the job unless you know the job as well as he should, because how can you question him? It is pretty hard to question if somebody can be a rocket scientist if you do not even know what the hell a rocket scientist has to do. I guess there is the background that obviously would have been looked at, the academic background and the arithmetic of the individual before he was considered. I would hope that was all done. There might be some minimum standards to hold a posting that you would think the committee should not have to review, that it was done by the people who were appointing the individual.
Other than that, I tend to agree that we have to find out, or we have now the ability to look at whether a person is suitable for the job. It is not always just cut and dried, is it? There are things that members may or may not know about somebody that might be pertinent to his position.
The Chair: When you have someone appear before you, the only materials you have, really, are those that have been supplied by the government, perhaps a résumé and some indication of what the job is all about and what the agency that he or she is responsible for is all about. The committee research staff does not get involved in taking perhaps a more in-depth look at some of the issues confronting this person, some things he may have said that are on the record that could be controversial or something about his or her background. You do not have that sort of capability.
Mr Holtmann: That is true. It is pretty hard to investigate somebody's background other than if he happened to be a public figure before. The case that I think of all so often -- it might be really of interest to this committee if you review it -- is that the Prime Minister appointed Stephen Lewis as our ambassador to the United Nations. I do not know if we even did a review of that. I do not think the McGrath commission was in at that time. It was before that. It would seem to me that an appointment of that nature would have been a most interesting review.
The Chair: I agree.
Mr Holtmann: After the fact, of course, knowing what took place. Of course, that is the prerogative of the Prime Minister, as we know, the prerogative of the Premier, to appoint different people. Nevertheless there is a case where one might argue, "What philosophy" -- you talked about a philosophy -- "are you going to bring and is it going to be the one that the government of Canada represents?" That sort of questioning would probably have been most interesting. So I think we had better keep the reviews around so far.
The Chair: It would have been interesting to know who contacted him about the job too.
Mr Holtmann: That would not come before me. That would come before the Department of External Affairs for the standing committee to review.
The Chair: You obviously do not have the ability to bring in outside witnesses. Is there any avenue available if someone has a concern about a particular appointee? Is there any way that can be brought to the attention of the committee?
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Mr Holtmann: I believe we have the right to do that. The committee, I believe, can bring anybody before it that it wants to, and it can subpoena whomever it wants to. So yes, we could. In my view, in considering somebody else's appointment we could bring in a witness to give testimony about it. Tell me if I am wrong.
Mr Radford: I think you are right. It has never been done.
Mr Holtmann: That is the power we have.
Mr Radford: Under 110, yes.
Mr Holtmann: I believe so.
The Chair: You do not look at reappointments, I gather, if somebody has been appointed for a given period of time. Do you have the ability to look at reappointments if you wished to do so?
Mr Holtmann: I have not seen too many reappointments in the three years we have had this ability. There may have been some.
The Chair: I was just curious if you had the ability.
Mr Holtmann: I suspect we could.
Mr Sutherland: If I could just pick up on your point about whether you bring outside witnesses in, you commented that you have the power but you have not done that. I wonder what your recommendation would be about that as an acceptable practice.
Mr Holtmann: I am in new territory here now because we have not done it and I have had no urging to do it. We have the ability, but I have already told you that. You are asking me, should you incorporate such provision.
Mr Sutherland: I am asking you whether we should or should not, from your point of view, as to what the process has said and what you have said.
Mr Holtmann: I do not think so. I really do not think so, because it is then starting to become too much of almost a judicial body of activity and I really do not think there ought to be a need for it. I indicate we do have the right because of the independence the committees now have in the House of Commons, but it is not one that I think would be exercised very easily.
Mr Perruzza: Could this committee conceivably move into a closed-door session where you do not have Hansard and ask the kinds of questions that perhaps everybody around this table is thinking of? Is that a practice for legislative committees or not? Everything is open book?
The Chair: Oh, no. There are occasions, if there is a feeling of the majority of the committee that we wish to move in camera, we can do that through a simple motion. I think for the most part we try to keep our meetings as open as possible, but there may be areas that a majority, if not all, of the committee feel are extremely sensitive and should be done in camera. That option is there for the committee.
Mr Perruzza: Is it your feeling that people would want to ask appointees questions that would be beyond the realm of what would be a normal interview? We have all interviewed or have been interviewed for jobs. Do you find that is the case?
Mr Holtmann: Let me say that it is not normal that people will get into those sensitive areas. But I can assure you that it could happen, and it likely will happen unless you have some restrictions. I think it is back to the call of the Chair. The in-camera question that was decided is an option that you might want to exercise even in the review. As a matter of fact, if there is a suggestion that some of this may be very sensitive, the interviewer may ask to be questioned in an in-camera manner and indicate why. I think that is something you might want to consider.
Everybody has backgrounds that sometimes they might want to be kept private, for whatever reason, and they may not want to answer questions. I guess the answer is, "No answer, no comment," whatever the case may be. You will deal with them from time to time, but all I am saying is that I do not think anyone is out on a witchhunt as much as he is to try to determine whether a person has the ability to carry out the task he is being assigned to do.
The Chair: I guess that concludes the questioning. We very much appreciate your appearance here today. It is going to help us in our ongoing deliberations when we get into this in about two weeks. It is very helpful indeed. Once again, thanks on behalf of the committee.
Mr Holtmann: Nice to be with you. Good luck.
The Chair: As a final part of the committee business today, I would like to report on the subcommittee meeting that took place during the lunch break. One element of that is not incorporated in the official report and that is the discussion of the kinds of questions that we might be faced with. The members of all three parties agreed that prior to getting into our first discussions with some of the prospective appointees, we will try to devote half an hour or one hour to discussion within the committee of the kinds of questions that we might be looking at, not that we are going to reach perhaps any consensus, but at least we will have some sort of understanding within the committee of the sorts of things that will be discussed and the kinds of questions that will be raised.
The subcommittee report, and this is in clerkese, as I guess you can describe it: "Your subcommittee on committee business met this day pursuant to paragraph 2 of standing order 104(g). Notwithstanding paragraph 3 of standing order 104(g), your subcommittee reviewed a list of intended appointees referred -- "
Mr Grandmaître: Do you all understand that?
The Chair: We will translate this after -- "a list of intended appointees referred to the committee on this day. Pursuant to paragraph 9 of standing order 104(g), the subcommittee advises that it waives its right to committee review of the following intended appointees to the council of the Royal College of Dental Surgeons: Ms Solette Gelberg and Richard J. Cowan."
I can explain that for the benefit of members of the committee. This was a request from the government and through Mr Silipo that there was some urgency to these appointments going through and the fact that the Royal College of Dental Surgeons was unable to carry on business this month unless these appointments were approved rather expeditiously. So the subcommittee decided unanimously to waive its right for review on those two appointments.
There were -- I cannot recall the exact number -- a handful of other recommended appointees which we have -- the Education Relations Commission, the College Relations Commission, Workers' Compensation Appeals Tribunal -- and we have decided to carry those over until next week when we are going to have another handful of recommendations from the cabinet. We will be able to decide at that time. The subcommittee will be meeting again next Thursday, following the Wednesday cabinet meeting, and we will be coming back to the committee with some recommendations following that subcommittee meeting.
Mr Silipo: Just to add for the record, I think it would be useful that the information that we also had before the subcommittee indicated that in the two appointments that we are recommending we waive our right to review and that it is also a situation in which the minister is appointing people who were recommended through the council of -- I forget the full name of the council but the council to which the people are being appointed.
The Chair: The council of the Royal College of Dental Surgeons.
Mr Silipo: That is right, yes. So I think it is also useful to just put that on the record as well, that this was also part of our discussion.
The Chair: Any questions on the subcommittee report?
Mr Stockwell: I think it is a great report.
The Chair: No bias there. I think all members of the committee understand that it is deemed to be adopted. Okay, we do not require a motion. Anything further before we adjourn for the week?
Mr Kwinter: Yes, I want to say how much I enjoyed participating.
Ms Haslam: I would like to say how much I have enjoyed having you here. I find you a wealth of information. It has been very interesting listening to all your comments and information.
The Chair: I enjoyed your contribution, Mr Kwinter, very much.
Mr Kwinter: I enjoyed being here and maybe I will come back again sometimes.
The Chair: We will meet at 2 o'clock on Monday.
The meeting adjourned at 1532.