Wednesday 6 February 1991

Freedom of Information and Protection of Privacy Act, 1987

Environmental Assessment Board

Continued in camera


Chair: Duignan, Noel (Halton North NDP)

Vice-Chair: MacKinnon, Ellen (Lambton NDP)

Cooper, Mike (Kitchener-Wilmot NDP)

Frankford, Robert (Scarborough East NDP)

Marland, Margaret (Mississauga South PC)

Mathyssen, Irene (Middlesex NDP)

McClelland, Carman (Brampton North L)

Morin, Gilles E. (Carleton East L)

Murdock, Sharon (Sudbury NDP)

O'Neil, Hugh P. (Quinte L)

Owens, Stephen (Scarborough Centre NDP)

Villeneuve, Noble (Stormont, Dundas and Glengarry PC)


Mills, Gordon (Durham East NDP) for Mr Cooper

Fletcher, Derek (Guelph NDP) for Mr Frankford

Also taking part: Sterling, Norman W. (Carleton PC)

Clerk: Arnott, Douglas

Staff: McNaught, Andrew, Research Officer, Legislative Research Office

The committee met at 1400 in room 151.


Resuming consideration of a comprehensive review of the Freedom of Information and Protection of Privacy Act, 1987.


The Chair: I would like to call the meeting to order. I see a quorum present. I would like to welcome to the hearings Gail Morrison, the executive co-ordinator of Ontario Hydro, demand and supply. Welcome. You are the only witness this afternoon so you have as long as you want to take to make your presentation.

Ms Morrison: Thank you very much. I actually will not take very much of your time. I have a few brief words I would like to say, and I trust that you have all received the submission which I sent in ahead of time.

The board has asked me to come before the committee today to talk to you about a very narrow point concerning the freedom of information and protection of privacy legislation. I do not intend to address the general questions, but this particular point is of some importance to the operation of a board such as the Environmental Assessment Board and it asked that I make representations to you on its behalf.

The board, as you may be aware, is made up of a number of panels which hear different aspects of environmental assessments. The one that I am associated with is the one that is reviewing Ontario Hydro's 25-year plan. This is one of the most complex and difficult assessments that the board has ever undertaken. I think it is fair to say that it is one of the most complex and difficult hearings that has been set up in the province in some time.

We have, as you will note from my submission, some 150 full-time parties, many of them represented by lawyers and many of them funded through the Intervenor Funding Project Act by Ontario Hydro so that they can make appropriate submissions about the environmental assessment of Ontario Hydro's proposed 25-year plan. The funding amounts to more than $20 million, so when you pay for that much lawyers' time, you can imagine you get quite a lot of chat.

We are just beginning our process now. In beginning that process, the panel members are quite aware of some of the limitations on their activities, and one of them which concerned them was possible difficulties under the Freedom of Information and Protection of Privacy Act. It is very much in the interests of a board such as the Environmental Assessment Board and a panel such as this one to be open and available to the public being heard before it. No one at the board would like a decision to be made which does not invite the widest participation of the public and which does not give it as open as possible access to the information upon which the decision is to be made. But in a situation such as the one in which I am involved with the Ontario Hydro demand-supply plan, there are a number of constraints which the panel is operating under. They have a very, very difficult set of information to look at. It technically touches a very wide range of subject matter. There are things from economic forecasting to the health effects of various technologies, the technology of energy production itself, the pricing, the responses of the public to pricing, demand management and environmental effects large and small.

The panel is a three-member panel and it is a panel that is not a panel of experts in the usual sense. The chairman of the panel is a Supreme Court judge. Two other members of the panel have backgrounds in environmental and scientific areas, but they are not experts on power production or experts on the kinds of subject matter which will be the main part of the hearing. They are therefore trying very hard to provide themselves with sufficient information to make a reasoned and rational decision which would not be criticized by any of the parties to the hearing. In arriving at an informed decision they must somehow absorb this enormous technical information and share it with one another and utilize the staff which is provided to them: myself, counsel, computer experts and some technical experts who will try to help them understand the information to form their decision.

It is not at all the intention of their view about this particular section of the Freedom of Information and Protection of Privacy Act that they wish to keep information from the public, but they do wish to be able to make a decision in an efficient and effective way. In a matter such as this, if a decision cannot be made in a reasonable time frame, the decision itself will be useless. Matters change so quickly in the field of energy pricing, in the technology, in the understanding of environmental effects, that if the panel cannot hear the information and make a decision in a reasonable time frame, the decision itself will be outmoded.

The main concern they have is the possibility that their process might be affected by the ability of not only parties but members of the public, and anyone in fact, to ask under the Freedom of Information and Protection of Privacy Act to see all of the kinds of informal notes and informal documentation which will form part of their everyday work in trying to assess the plan. They are not, I think, concerned that there is something secret upon which they are going to make their decision. Rather, they are concerned that they will have to, as a three-member panel, communicate in a number of different ways with one another, through written communications, through draft decisions, and they will all, of course, be making notes as they hear the evidence. I think we can all understand that it would be impossible in such a difficult technical area to make a decision without making very copious and careful notes as the various parties present their views.


If, as it appears from the Freedom of Information and Protection of Privacy Act as it has been interpreted to date, all of these documents are open to disclosure under the act, then it has a chilling effect on the decision-makers, and on their staff indeed, in attempting to reduce to writing any of the information that is short of a final decision in the matter.

It is therefore the purpose of the small written presentation which I forwarded to this committee to point out the difficulties that the panel sees with this particular type of disclosure and to ask the committee in its deliberations to consider changing the section in such a way that draft opinions, notes taken by tribunal members and other pre-decision deliberative types of communication would be exempt from disclosure under the act.

Again, it is the board's view that there are a number of mechanisms in the hearing process which provide information to ensure that the parties have a good knowledge of one another's cases and a good knowledge of the reasons that the panel uses to eventually come to a decision. There are verbatim transcripts which are taken at all of the hearings which are made available by the board to all the parties. Those transcripts are made available both as hard copy and through a computer search facility to enable people to find any particular portion of the transcript which might interest them. Full reasons for a decision are given on motions and on any important decision that the panel makes. Those reasons for a decision are mailed out to the parties as soon as possible after the decision is made to ensure that everyone is fully informed about the decision-making process. All of these particular mechanisms for the sharing of information do, in the board's view, provide parties with the protection of their right to know the information upon which a decision is based.

In addition, the board's processes are very analogous to those of a court. In fact, parties have very extensive legal rights to challenge the panel's or the board's decisions, and the processes in the hearing itself follow court processes very carefully so that the rights of the parties in the hearing process are protected. In the original aims of the freedom of information and protection of privacy legislation there was a concern that there might be decisions made by administrative tribunals which depended upon backroom information. The legislation was never extended to court processes and it is the board's view that its processes are, in the hearing of matters such as the environmental assessment of the Ontario Hydro plan, very like court processes and therefore subject to the same protections which exist in that process. They therefore feel, in the particular of the disclosure of notes, draft decisions and other communications among the panel and of the panel with the staff, that a specific exemption should be made from the disclosure of this information.

I think that summarizes the board's view of the matter. As I say, it is not their intention to make a general submission but only to address this specific point.

The Chair: Thank you very much. Normal rotation today would begin with the third party. Since we have some time this afternoon, there is lots of time to ask questions.

Mrs Marland: I must say that it is really encouraging to have you here this afternoon and listen to your frankness and your openness, because it is a very critical area that you are addressing. It is ironic in a way, because I have thought that if there was any board that I would like to be appointed to some time in the future after I retire from politics --

Mr Owens: Wrong committee, Margaret.

Mrs Marland: I may be quite elderly by then and I am not planning to retire for at least another 10 years, but the Environmental Assessment Board is -- I know we have many, many important panels -- in my estimation, one of the most important hearing panels that we have in the province today.

Some of the aspects that you have brought to us about just how difficult and how challenging that very real responsibility is, to hear you describe the difficulty and be so honest about it -- in fact, I often say to people who bring worlds of problems and challenges to us as members that I never pretend to be an expert on anything that I do not know anything about. In fact, I personally find it quite a learning experience to ask a whole lot of questions all the time, and that is how you acquire the knowledge, step by step, to deal a little more effectively with problems in arenas that you really have no previous experience in.

I can quite well see how terribly difficult it must be at times on a board like the Environmental Assessment Board where you have nothing but expert witnesses, consultants and, as you say, very effective counsel, and the counsel are calling their effective consultants as witnesses with a lot of technical and professional information. It is quite true that as you sit there as a panel member being very honest on behalf of the people of Ontario that you are not an expert in all of these different subject areas that are being brought before you as evidence. However, I think that is why we have confidence in the process.

I wanted to say that up front because I am confident in the Environmental Assessment Board hearing process, and I am confident because I think sometimes people who are not immersed in one aspect of information then perhaps can hear all aspects much more openly and clearly. If you are sitting there as a panel member with a technocrat on the engineering aspect of this particular report of Hydro's and then you have someone who is perhaps a physician or someone in the medical field who is dealing with the health issues and perhaps an actuary who is dealing with the economic forecasts, I think as panel members you can sit there and listen to all of it very objectively because you are not claiming to come from any particular specific field yourselves.

Now, when you describe how copious your notes have to be while you are listening and how important those notes are to you, I am fully sympathetic with that. Those kinds of notes, which are essentially notes to yourself -- there is no way, as far as I am concerned, that they are part of an official public record, which is really what you are trying to say to us, is it not?


Ms Morrison: I think so. One of the things to bear in mind is that in a number of other tribunals you would have a single member sitting, which is often not the case with the environmental assessment tribunals because of the wide range of expertise you need and because of the difficulty of the questions being addressed. If the person is sitting alone, he or she is not likely to be subject to the same necessity for disclosure because he will not necessarily have to write down and share information with anyone else to come to a final decision. With a three-member panel, as you can imagine, it is a case often of writing by committee. One member will say: "I think this is a good beginning. What do you think of it?" and the other member may say: "Well, I don't share that particular wording. I would sooner it said it this way around." I think there is a danger, if that kind of information is to be available under a disclosure statute, that either the members will be hesitant to share their information in writing or that there will be some misunderstanding that will be generated by people having that information, some misunderstanding about the thinking processes which were going on. I think that is the chief concern of the board in this matter.

Mrs Marland: I am completely sympathetic to that, because being a responsible board member would mean that at the end of the hearing process, yes, you would have come to some conclusions yourself, and you will have your notes -- to which you would refer, when you think of how many months some of those hearings go on. But being a responsible board member, though you have reached these conclusions, the most effective you can be to represent the overall interests of the people of the province, which is what you are doing, is that you are willing to listen to the other board members. Human beings being what we are, we can all pick up different things from the same hearing and the same people giving the same evidence; you might look at it and interpret it in a way I had not. The important thing is that we can both refer to our notes and talk about it.

How on earth that could ever be construed as information that should be made available to the public when, at that point, they are still only my personal notes or your personal notes as a board member -- are you saying you have had requests already? Is there precedent for your concern?

Ms Morrison: There have been requests at other tribunals. We have not yet, at the panel I have been associated with, had a request for this kind of information, partly because we have had only a few preliminary hearings at the moment so there is very little of that kind of information available. There has been some question about information from staff reports and the expert assistance the panel will have. The panel is intending to resolve those problems by making all reports it receives on any evidentiary matter a part of the record of the hearing, so those will all be set on the record and the parties can review those.

To the extent that they are receiving expert opinion on anything, they feel obliged under the usual legal principles to make those available to the parties. The only parts of their deliberative process they are concerned about in disclosure are the kinds of notes and questions they might ask staff, which are just for clarification and are not really part of the end product of the decision-making. For example, if you look at the documents that are available for the Ontario Hydro plan, they fill this table, and a number of them use technical terms which are not familiar to just anyone. I think panel members might say, "Could you please provide me with a list of books or documents which would give definitions of the following terms?" They may not want the public to then take that document into the tribunal and say something like, "Here's a person listening to this particular technical evidence who did not know at the beginning of this what the term `volt' meant." There is a kind of misunderstanding which could arise from the simplest question about what the intention of the question was or, indeed, about the expertise of the tribunal members. They do not pretend to be experts in this matter and they are educating themselves as fast as they can, but they need to have the freedom to educate themselves in an efficient way, if you like, and not one in which they would have to ask those questions in an open forum, so to speak.

Mrs Marland: Some people would say the alternative is then that when you have an Environmental Assessment Board hearing on, for example, the Ontario Hydro demand-supply report, you must have a panel totally made up of electrical engineers and economists or whatever. If you are really representing the overall interests of the public, then it gets back to the point I made a few moments ago that I do not want the specialists in all of those particular areas on that panel because they will only look at it from that perspective. You will get an electrical engineer who may only look at it in terms of, "Well, we've got to supply electricity to the people in Ontario and this is the only way to do it." Because it is the Environmental Assessment Board, I want my panel members to be looking at that from the overall impact on the environment; that is what the Environmental Assessment Board is about.

So if there is a way, when we write our report, that we can address your concern in a generality dealing with boards and panel members and their own personal notes, and have some exclusions in what is defined as part of the public record, I understand very clearly what you have brought to the committee today and l am fully supportive and sympathetic to that request.

Goodness knows what they would ever get from our desks in the House if they went around and required all our notes. We are panel members of a sort, the same as you are. There are some committee hearings where I take copious notes. There are some sessions in the House where I am making notes to myself all the time. In a way, yes, they are part of the end, but they are mine. It is almost like opening up your brain and putting it out on the table for everybody else to review, and that is just absurd.

Mr Sterling: I heard your presentation and I have read your presentation as well. Part of the differentiation between the courts and your board and the other 96 quasi-judicial boards we have in the province -- I think part of the reasoning for the legislation excluding courts and not quasi-judicial bodies is that within the court structure there are rules of evidence, there are rules of disclosure which provide that litigants or people who are party to the proceedings have rights to certain kinds of access to information. I think the framers of the Freedom of Information and Protection of Privacy Act had the idea that there is not the same kind of structure in the quasi-judicial process. You may want to comment on that.

From the previous comments we have had, and it is my view, the freedom of information act has done more to shield information than it has to produce information. If you accept that premise, then you are here today to ask us to further shield more information from the public, as a general statement. It not only affects your board, but it affects -- I believe there are 96 quasi-judicial boards in Ontario. Maybe you could enlighten us as to why your board would be different from the other 95.


The third thing I would be interested in -- I think this is a fairly major consideration -- I am not necessarily against what the submitter is asking the committee to do, recommending some kind of accommodation, but I do know that the Ontario Labour Relations Board, for instance, came forward to the Chairman of Management Board since the freedom of information act was created and asked the very same question. Therefore, quasi-judicial bodies are concerned about the attack of information which is in behind a decision these boards make. I would be interested in knowing whether particularly the Attorney General -- not himself so much as his department -- has some kind of comment on it. I think there are spinout issues we may or may not be considering.

I was not the drafter of the existing legislation, but I was involved in a previous draft, as you may know. I think the problem the drafter of freedom of information legislation always faces is that many of the same arguments that were presented here were presented by bureaucrats and were presented by the civil service about protection of information they had; in other words, if they were going to exchange information with each other, then there would be a reluctance to write anything down. The argument went on and on. The people who were involved with the archives made the same kind of pitch.

As I say, I am not necessarily against this, but I certainly would like some of the issues I raise, principally that I do not think we could make the rule for one board and not make it for 95 others -- I do not know how that spins out with regard to the other 95.

The Chair: Is that a request, that we can get that information?

Mr Sterling: I really think that if the committee is going to consider this seriously, then we probably should get the other side of the story, if there is one. I think it is a serious question that maybe you want to make a recommendation on. My tendency at this stage would be to consider that as a serious request and maybe grant either a part of it -- but I am not certain how it affects all of those other quasi-judicial bodies that are not here today. And I would like to hear the story of the advocates on the other side as well. I guess I am giving that as bit of advice to the committee. If it is going to proceed with taking this kind of issue to bay and make a recommendation to change the legislation, I do not know if there is another side to the story or not.

The Chair: I will direct the clerk to see if we can obtain that information.

Mr Sterling: I think the Attorney General might be interested in making some comment on it. Maybe you would like to talk about the other 95 --

Ms Morrison: The board has approached this from its own point of view, but there are other tribunals that would certainly have the same concerns. It is probably of greatest concern to those kinds of boards or tribunals that are dealing with very technical information or very long hearings. In a day-long hearing, where you are really assessing the credibility of a witness, you are perhaps unlikely to have the same sets of notes and the same necessity to keep track of what is happening as you do in -- the hearing we are presently tackling looks like it may take us as long as 18 months or two years. By the end of the first year, let alone the 18-month period, whatever has gone on in the very first day is difficult for you to recall unless you have careful notes.

It is not the board's view that it is the only board that should have this particular exemption, if you like. I think they understand the view that it should be a very narrow exemption. It is not intended to keep people from knowing the information upon which a decision is made. In fact, there is an exemption in the present legislation that does allow a head to refuse to disclose advice or recommendations of a public servant. The public service concerns about being able to write their advice to other members of the public service was recognized in the legislation. I think it does meet a certain need in the public service.

Here, with the tribunal members, there is not the same freedom. To the extent that we have been able to determine by looking at past decisions, under the present legislation the tendency has been not to give that kind of exemption to the notes of tribunal members and to the kinds of communications between tribunal members or, indeed, between staff and tribunal members. So there does appear to be a need to give an analogous kind of exemption to members of a tribunal.

You mentioned that the quasi-judicial process is different from the court process. Indeed it is. I think we try very hard in the Environmental Assessment Board to make the process a little more approachable for the public; that is, we try not to make it overly legalistic. We try to make sure that people who cannot afford representation feel comfortable in front of the panel and feel as if it is not too legal a process for them to be involved in.

At the same time, all of the panoply of legal rights which are available to people in a court process are also to a large extent available to people before quasi-judicial tribunals through the administrative law process. The process of judicial review will often review a tribunal's decision on the basis that it has not appropriately provided disclosure or that it has not followed rules of evidence which are the tested rules of evidence of the legal process. To the extent that that review by the judicial process is available on procedural grounds -- in fact, those are really the limited grounds upon which the courts can review the decisions of tribunals such as this -- the parties' rights to procedural protections are very much protected through that process. Their right to disclosure of other parties' documents, their right to be able to call evidence, their right to control of the process is to some extent supervised by the judicial review procedures.

It is true, I think, to say that boards are quite different from courts in some ways -- in good ways, we hope, ways in which they make it easier for the public to take part in an important public process. But in ways in which the rights of the public are protected to legal procedures, I think there are many likenesses between the quasi-judicial process and the court process.

Mr Sterling: The basic difference, though, between a court hearing and a quasi-judicial hearing is that your decisions are based not only on the written law but they are also based on policy, which the government of the day has indicated in various and different ways. Part of the concern of the Williams Commission on Freedom of Information and Individual Privacy was that the people who were in front of the board would not understand what the policy might or might not be. Was it in a letter that a minister wrote from himself to some mayor, or was it a policy statement he said in the Legislature some time? Was it part of a speech he made someplace? Was it any other kind of statement?

That had always been the concern, I guess, of the Williams commission, separating what your board and those other 95 boards do from the court system. The court system goes on the basis of law; therefore, the people who are in front of it know the game they are playing. Often, in front of the Ontario Municipal Board or your board, the litigants would say, "We don't understand what the rules are." That is why I think there might have been a decision to give greater access to your records than to those of the court.


Ms Morrison: Certainly. To clarify, the board is not arguing that documents upon which it bases its decision should not be fully disclosed either through the process or be open to a freedom of information request. I think the very narrow area of information that is of concern to the board is that area of communication such as the books that the panel member uses, actually making notes during the hearing.

I think it is the board's view that the exemption could be worded very narrowly if necessary, to ensure that it does not take into account policy documents or the kinds of things which were the concern of Williams -- and the rightful concern, I think -- that there was some kind of secret information upon which discretionary decisions were being made.

It in no one's interest who is a panel member to make a decision which does not satisfy the participants to the extent that they feel they understand the basis for the decision. Tribunal members have no interest in making a decision which would be attacked by participants on the basis that it was based on information they had not been apprised of. They go to great length in these processes to set up paper systems, computer systems, libraries and so on to make sure that background documents and policy position papers are all available to the public at all times. Certainly it is not the intent of this submission to suggest that those matters should not be open to public disclosure.

Mr Sterling: Perhaps you could give us some kind of written submission as to what kind of an exemption you are seeking. That might help the committee if it should want to make that change.

Ms Morrison: Okay.

Mr Fletcher: I just have one question and one comment. These notes that are written down, is there anything that may be written that really should not go to the public, that is going to endanger the public, or are these just their copious notes?

Ms Morrison: I think that is a difficult question. As I think was pointed out, if you were making notes in the House, you might be very busy listening to what was said. I know when I make notes, for example, I use kind of a shorthand. I might miss out words which afterwards I can say: "Oh, I really meant `not' something; I just missed out the word. I know what I thought but I did not write it down that way." I think they could be easily open to misinterpretation.

The other kind of information that I think it is probably difficult to imagine would assist the parties, and might really in fact be dangerous if disclosed, is the drafts of decisions where you have three people who are putting down their impressions and trying to marry them into a final decision of a three-member panel. It is not that there is going to be wrong information there. There are two things that happen. When you are writing a decision, you often do not realize until you try writing it out that you are not logically connecting all of the steps, and therefore it is when you write your draft that you sometimes change your mind about what the end result even of the decision would be, or at least you might change your mind about the steps that you take in explaining it.

A draft decision might not look at all like a final decision and parties who have disclosure of that draft decision may have some reason to think that there was some, I suppose, insidious influence or something which changed the decision from its first form to its second form, when in fact all it was, say, was a discussion among tribunal members or a kind of thinking-out process which happens when you write a draft decision.

I think it is things like that where no one is trying to particularly hide any dangerous information so much as one is a bit more sensitive about making notes about something if one knows they are going to be passed along to one's neighbour for review. Even one's spelling has to be a little bit more careful if it is going to be for public consumption.

I think the main thrust of the board's view is that nothing is going to be served by disclosing those. If somehow the disclosure of those would give people information which would make the decision fairer, then obviously it should be disclosed. The information that makes people understand the basis for a decision, the information that makes people be able to respond to the other party's point of view in an effective way ought to be disclosed. I think there is no doubt about that.

But whether the notes a panel member makes while listening to those particular points of view would contribute to the party's ability to argue his or her position and obtain a fair decision I think is a question of utility. If there is no utility to them, and they also may have a chilling effect on deliberations, then I think a narrow exemption which encouraged people to be thorough in their note-taking would be an effective part of good decision-making.

Mr Fletcher: Poor spelling and sloppy writing are not really an excuse to not make them public though. You did not really answer what I was asking. Maybe you did, because maybe the answer is no, releasing that information will not endanger the public in any way, shape or form.

Ms Morrison: I guess "endangering the public" is a difficult term, but I think what I see as a danger, or what the board perhaps is most concerned about, is that the integrity of the decision-making process may be brought somehow into question by the disclosure of the preliminary thinking of the panel members or the preliminary jottings as they were hearing the evidence.

As I said, it is quite possible when you are jotting something down to put it in a way which would not be the ultimate way in which you would characterize the information. You might, for example, write down some point and put a short note after it which says "no." That "no" may be some kind of thing which jogs your memory as to the way you were evaluating that information. But read by a third party, it might be misinterpreted entirely and bring into question the kind of diligence of the board member or indeed the kind of logic that was brought to bear on the information that is being noted. I think it is possible that it is open to misinterpretation and therefore dangerous to the integrity of the decision-making process.

Mr Fletcher: The information that would be written down would only be made public if someone requested it.

Ms Morrison: That is right. It is not on the public record.

Mr Fletcher: Right. So if someone requested it, then it would probably be someone who knew what he was looking for. I cannot understand why it is so secretive a process.

Mr Sterling: It might be someone appealing a decision.

Ms Morrison: It might be someone appealing the decision. I think it is a matter of whether its utility to the parties in obtaining a fair hearing outweighs its value as an aide-mémoire, if you like, to the people making the decision. It is difficult for us to see at this point in the process -- with the Hydro plan, for example -- how the whole matter can proceed if people are nervous about making quite detailed and careful notes about the evidence that they hear on the basis that these could be somehow disclosed to the parties and used as the basis of perhaps an appeal or even publicity.

Of the many parties who are involved in this particular hearing, many of them are, I think it is fair to say, professional publicists to the extent that their causes are public causes and it is necessary for them to make public their views on a wide range of issues in order to raise money from the public to put forward their viewpoints. It is possible that information such as this could be misinterpreted and used in a way which would, I think, bring the decision-making process into unnecessary disrepute.

Mr Fletcher: I do not share that opinion.


Mr Mills: I just want to thank you for being here this afternoon. I am really sort of just filling in here for another person, but nevertheless I have a great interest in what you are talking about. I can understand your perception of the problems with notes. I share Margaret's view; if anybody looked at my notes that I wrote when I am sitting in the House, I dread to think of what the outcome would be.

I would just like to take up on this particular part that you have on page 3. It says, "A decision-maker, faced with the possibility of having to disclose anything s/he notes during the hearing, may choose to note nothing." I can understand that. I spent the better part of my adult life as a policeman, and I can tell you from my experience in courts that the notes taken at crime scenes have caused so much embarrassment over the years to so many people in law enforcement that they have almost come to the point of being somewhat paranoid in sanitizing what they say, because of the fear that at a hearing or a trial the judge or the lawyer may demand to see those notes.

People then tend to really be careful of what they say because of that confrontation process. I would think that if that process is extended to the hearings on Ontario Hydro, that takes away from the intent of what a hearing is supposed to be. I would like to support you in that those notes should not be subject to disclosure, because you are going to have such a narrow choice of words in notes that it would take away entirely from the process when you come to discuss and make some final decisions.

Personally I think that would not be in keeping with what the board is really trying to do. So I have a lot of empathy for what you are trying to say and a lot of support, because we do not want hearings, in my opinion, to become sanitized by fear of what you may have written that really was not meant to be interpreted the way you wrote it. Once again, thank you for being here. I really enjoyed listening to you.

Ms S. Murdock: I just have a clarification. When you are asking for exemption of all personal note-taking, is that including memoranda to -- say you wrote a letter asking for specific information to either a member of your committee or to legal counsel for your committee or whatever. Would that include that? Is that what you are asking the exemption to include?

Ms Morrison: No. the exemption, I think, could be quite narrowly framed so that it really prevented disclosure of the personal notes of tribunal members. The kind of documentation you are talking to is mainly open to legal disclosure under the rules in any case. For example, when the tribunal asks its counsel for a legal opinion on something, it must disclose to the parties that it has asked for a legal opinion. It must disclose the legal opinion to the parties if it is going to rely on that opinion for the basis of any of its decision-making. So there are a number of protections already in place through the legal process to ensure that those kinds of documents are public.

Ms S. Murdock: Okay. I guess I did not word it correctly, because I was not thinking so much of the legal counsel, although I know I said that, but I am thinking of just writing a letter or having your secretary write a note to a member of the panel asking for information. Are you including that or are you including just the kinds of notes I am taking today?

Ms Morrison: The kinds of notes you are taking today are the main consideration, I think. There are other notes which would also cause some concern, and those would be notes as between panel members either during the sittings or: "Could we meet tomorrow to discuss that part of the evidence on such-and-such? I was not clear what was being said by X."

That is not a dangerous piece of information in the abstract, but a little later on when you are appealing a decision and the decision has been given by one member of the committee representing the rest and that member turns out to be the one who said, "I did not understand that person's evidence," then there might be some question later on whether you could bring that forward as part of your argument that this decision was not appropriately made.

I guess it is very difficult to not seem paranoid in making this particular pitch and not seem to be trying to hide things from the public, which is not at all the board's aim. It is, I think, the board's view that it is only trying to ensure that the decision-making process works as well as possible and not trying to be too sensitive about its spelling, for example.

Ms S. Murdock: Just one other comment, actually along the lines of Mr Sterling's: One of my questions was, I got the impression from your opening remarks that you wanted this to apply specifically to the Hydro environmental assessment. But any legislation that would be made could not specifically deal with just that. They would have to deal with all environmental assessment review boards.

Ms Morrison: It would certainly have to deal at least with the Environmental Assessment Board and probably you might --

Ms S. Murdock: And other tribunals.

Ms Morrison: Other tribunals as well. I think it would be fair to say that there are many tribunals with the same concerns. I did not intend to suggest that this was that specific but only that I was using that as a kind of vehicle for explaining how important the board felt this particular matter to be.

Mr McClelland: Thank you for your presentation today. Let me say at the outset that I for one -- and I am not speaking for my party but just simply personally -- really endorse the general principles of the Environmental Assessment Board as presented by you, Ms Morrison, and the suggestions that are contained in your submission. I agree, and I want to hasten to add that I agree with Mr Sterling's comment and caveat that we need to solicit further information and really canvass the idea carefully and ferret out, if you will, the implications and, to use his terminology, the spinoffs that could come from an amendment such as you have proposed.

I did not understand your submission to confine itself strictly to the Environmental Assessment Board, and indeed the recommended amendment that was put forward earlier did not confine itself to that. It was general in principle. I think that what you have done, though -- and I am going to revisit your remarks as they were reproduced for us in Hansard -- is give a number of specific examples that would be helpful in terms of framing the general wording and to express the principle that would, in my view, be appropriately applied in a suggested amendment.

I also want to add for the record that it is my view, and again my personal view, that the relative complexity and the technical degree of difficulty of matters before a board or tribunal are not necessarily at issue, because ultimately at the end of the day -- for example, Mr Sterling is both a lawyer and an engineer. I may require things that would require considerable assistance and he may not, depending on our own particular expertise and background.

As men and women fulfil their various roles on boards, I am not sure that the complexity is a relevant issue. I think it is a general principle of what you are talking about. Again, I am not suggesting that you have said that or are limited to that. I am not sure that is necessary in terms of the rationale for what you are saying. I think that might unduly complicate the criterion by which one would apply the principle.

Second, whether the panel is composed of one or three individuals or -- I am not aware of any quasi-judicial bodies that sit with more than three -- but there are a number of bodies, of course, which are determined by a man and woman sitting individually, and I am not sure that is necessarily relevant to the general principle either.


I use the example that Ms Murdock raised. If I were to solicit an opinion, even privately, and reject the opinion, based on some case law or precedent or interpretation of a previous decision, my use of that case law, precedent or the evidence that was put before the panel, if I was sitting in that capacity, would be referred to doubtless either directly or by inference or by implication in the written decision that I ultimately presented.

It seems to me that there is nothing nefarious or untoward or secretive about keeping those things to oneself. I think it has been well discussed, and again I will not revisit it at this point in time. The reasons that you gave I think are entirely appropriate, how people operate and how we each arrive at decisions in different ways. I think ultimately that an individual sitting in a capacity and making a decision is responsible for that decision.

On the face of the decision, what is contained therein, in the logic, if you will, to use your word, that is set out in writing, the defensibility of the decision is sufficient, in my view, in terms of a person's appeal and/or need to know, for the preservation of the right and/or rights of an individual or a group of people.

You very ably, in my view, canvassed the varieties of remedies that are available in law. Divisional Court has certainly been much more broad and, if I dare use the word, liberal in its interpretation of the tests of fairness, bias and so forth, that are being brought to bear in tribunals. All of that I simply put on the record for purposes of further discussion. I endorse the principle very favourably. I think you have given us tremendous assistance.

I hasten to add again that I believe Mr Sterling's comments are well taken. I would not want to embrace it without qualification and without careful scrutiny. But I do want to respond. I regret that he is not here, because I do not do this in a personal nature at all, but I take issue with the suggestion that there is something secretive or nefarious about ancillary documentation, draft decisions and the very able list of examples that you gave to us.

We had an individual here, a gentleman, yesterday who has a considerably different philosophical approach than I do to these types of matters, although I think many of his points are well taken. If I can use the analogy, it seems to me that at the end of the day we spilled over, just by way of background, into such things as cabinet decisions. Ultimately people in government are charged with the responsibility of making a decision, and it is the decision for which they are held accountable. How they arrived at that decision, what advice was rejected, what advice was considered, interpreted and perhaps modified in terms of consensus I think is ultimately irrelevant.

I think the same dynamic, quite frankly, takes place and I think we can do harm by losing the sense of balance -- and you, Gordon, so ably drew on your experience. We forget that there is a sense of legislation that serves a purpose and that it can become counterproductive. The very utility of the legislation is defeated by making it overburdensome in terms of the process. I do not think the process ought to be significantly impeded. The fundamental principle, in my view of the legislation, is to provide openness and accessibility with respect to issues of fairness and integrity. That is a fine line.

I just say that again not necessarily to solicit a question or comment from you but for purposes of putting on the record my position and I think perhaps that of my colleagues, with respect to your submissions. We will certainly be looking at this further and feel very positive about the suggestions that you brought to us today and thank you.

Ms Morrison: I would like to thank the committee in general for taking the time to listen to the submissions that the board asked me to make. I think it is a very valuable part of the process to be able to put forward a view such as one that comes from the experience of members of a board such as this. I certainly agree that this is only one point of view and you as a committee of course will be canvassing its effects in a broader framework.

That is not a framework that I was particularly either able or asked to present, so that I completely understand that this narrow point of view would have to be looked at by the committee in a much broader perspective and of course would be modified by the wisdom of the members in trying to make the legislation as a whole make sense and work. But I do thank you for listening to our submission today.

The Chair: Thank you for appearing here today.

Mr Sterling: One last question. All boards do not sit for weeks and weeks before they make a decision. Some boards sit for 15 or 20 minutes and make a decision. Sometimes those decisions are one sentence. Would you make the same requests in those kinds of situations?

Ms Morrison: I think in those kinds of situations there may be not very many notes that are at issue. I could not really see that they would be any more valuable to a participant in a disclosure request than the ones of a panel that sat for many days. I suppose if it was a very short submission, there might be a very short set of notes that were open for request, but I could not offhand see why there would be an argument that they should be disclosed.

Mr Sterling: Let's say it was not so short a submission, but it was a very short decision. In other words, it was a one-line decision after a day or two or three or whatever hearings.

Ms Morrison: I see, sorry.

Mr Sterling: The winner is not likely to be as interested in it but the loser is interested in finding why his or her request was turned down.

Ms Morrison: I would myself much prefer that reasons for decisions were thorough enough that both the winner and the loser would feel that they had been given an appropriate set of reasons.

Mr Sterling: So would I.

Ms Morrison: I guess there is the danger that if you make the notes available, then the obligation to give sound reasons for a decision might be affected by that. A decision-maker might say, "I am going to give a one-line decision because, if anyone wants to go behind my decision, I will have to produce my notes anyway, so I will not need to put all of it in a careful reasoned decision." That is maybe a bit farfetched, but it does seem to me if you are going to give a strong value to well-written, well-reasoned decisions that (a) there should be no necessity for disclosure of the notes and (b) it is conceivable that it goes against the value you put on the written decision.

Mr Sterling: In a court process, the court makes certain documents public: the writ of claim, the statement of defence. Anybody can walk in and get those documents. I am not that familiar with and I have never practised in front of your board. Do you have the same obligation?

Ms Morrison: Yes.

Mr Sterling: Is that written in law?

Ms Morrison: Yes, it is. It is part of both the regulations under the act and the Statutory Powers Procedure Act under which the board operates. We have what is called the public record, which contains all of those kinds of documents.

The Chair: Thank you for appearing here today.

I would like to remind the committee members that we have a full day tomorrow with quite a number of witnesses. If the committee members could remain behind for a few minutes, we have an item to discuss that has been brought up by a committee member, which we will do in closed session.

The committee continued in camera at 1509.