Chair /
Président
Mr R. Gary Stewart (Peterborough PC)
Vice-Chair / Vice-Président
Mr Brad Clark (Stoney Creek PC)
Ms Marilyn Churley (Broadview-Greenwood ND)
Mr Brad Clark (Stoney Creek PC)
Mr Pat Hoy (Chatham-Kent Essex L)
Mr Jean-Marc Lalonde (Glengarry-Prescott-Russell L)
Mr Jerry J. Ouellette (Oshawa PC)
Mr R. Gary Stewart (Peterborough PC)
Mr Joseph N. Tascona (Barrie-Simcoe-Bradford PC)
Mr Wayne Wettlaufer (Kitchener Centre / -Centre PC)
Substitutions / Membres remplaçants
Mr Carl DeFaria (Mississauga East / -Est PC)
Ms Frances Lankin (Beaches-East York ND)
Mr George Smitherman (Toronto Centre-Rosedale /
Toronto-Centre-Rosedale L)
Mr Joseph Spina (Brampton Centre / -Centre PC)
Also taking part / Autres participants et
participantes
Ms Sylvia Nemanic, executive director, Administrative Services
Division,
Legislative Assembly of Ontario
Clerk / Greffière
Ms Donna Bryce
The committee met at 1540 in committee room
1.
ELECTION OF CHAIR
Clerk of the
Committee (Ms Donna Bryce): Good afternoon, honourable
members. It's my duty to call upon you to elect a Chair today.
Are there any nominations?
Mr Wayne Wettlaufer
(Kitchener Centre): I'd like to nominate Gary Stewart as
Chair.
Clerk of the
Committee: Are there any further nominations? Seeing
none, I declare the nominations closed and Mr Stewart elected
Chair.
ELECTION OF VICE-CHAIR
Clerk of the
Committee: Next, since Mr Stewart is not here today,
we'll go to the election of the Vice-Chair. Are there any
nominations for that position?
Mr Joseph N. Tascona
(Barrie-Simcoe-Bradford): I nominate Brad Clark for
Vice-Chair.
Clerk of the
Committee: Are there any further nominations? I
therefore declare the nominations closed and Mr Clark elected
Vice-Chair.
Congratulations, Mr Clark.
Could you come and take a seat.
APPOINTMENT OF SUBCOMMITTEE
The Vice-Chair (Mr
Brad Clark): Is there a mover for the motion to appoint
a business subcommittee?
Mr George Smitherman
(Toronto Centre-Rosedale): There is.
I move that a subcommittee on
committee business be appointed to meet from time to time at the
call of the Chair, or at the request of any member thereof, to
consider and report to the committee on the business of the
committee; that the presence of all members of the subcommittee
is necessary to constitute a meeting and that the subcommittee be
composed of the following members: Mr Stewart, Mr Tascona, Mr
Lalonde and Ms Churley; and that any member may designate a
substitute member on the subcommittee who is of the same
recognized party.
The
Vice-Chair: Is there any discussion on the motion? All
those in favour? Any opposed? Carried.
APPOINTMENT OF OMBUDSMAN
The
Vice-Chair: Members will know that the House has
referred the matter of the appointment of the Ontario Ombudsman
to this committee, and we have been authorized to report to the
House our recommended candidate. May I suggest that in order to
deal with the process, a meeting of the subcommittee be convened,
and once the subcommittee has made recommendations, then they
will be presented to this full committee for approval.
Ms Frances Lankin
(Beaches-East York): I'm hopeful that members of the
committee, the Vice-Chair in particular, have been made aware
that there have been discussions with respect to the possibility
of reopening the advertisement period for the position of
Ombudsman which have taken place at the House leaders' meeting.
That discussion rightly belongs here at this committee, and I'm
hoping we can begin that discussion today.
If I could give the committee
a bit of background, I understand there is someone present from
the Legislative Assembly's human resources department who can
present us with some information about the posting, the period of
advertising and the possibilities and options for reopening. I
would ask them to come forward at an appropriate time and provide
us with that information.
Committee members may or may
not know that in September there were discussions between the
three parties about the process to be utilized in the selection
and appointment of the new Ombudsman. These discussions extended
also to the position of Environmental Commissioner, but that's
before another committee and is not relevant to our discussions
here today.
In the discussions at that
point in time, the request from the government House leader was
that there be a three-party committee appointed that would
comprise one representative from each party. The hope, I think,
on the part of the government at the time was to expedite the
process of appointing these positions and, relevant to us, the
Ombudsman's position, and that in an expeditious process we would
have somebody in place before the appointment ran out.
We agreed to that proposal,
as did the official opposition. As part of those discussions, we
agreed at that time to an expedited process of advertising the
position. The position was advertised in major newspapers I
believe around September 22 or so, and it was for a two-week
period. There are precedents in the past for major positions where parties have decided
that it could be longer than two weeks, and I think there are
precedents for three- and four-week postings at different
times.
The reason we agreed to this
process was (1) because of the structure of the committee that
had been proposed: one member from each party. It provided us
with a different opportunity of collaboration and co-operation in
the appointment of a position responsible to all members of the
Legislative Assembly, an important position from the perspective
of all three parties; and (2) because of the impending term of
office of the existing Ombudsman coming to a close, in the hope
that we would be able to have someone in place prior to that.
After that agreement had been
arrived at, there was a change of heart on the part of the
government and there was a decision that the process of selection
would be referred to this particular standing committee. As you
know, it's composed in a different way, and there is not
necessarily a different outcome but the possibility of a
different outcome.
In the usual course, there is
an important role for members of the Legislative Assembly in
being aware of the possibility of these appointments in
facilitating outreach with respect to people in our various
communities who may be interested candidates that would be above
and beyond the role of simply placing ads in major newspapers,
because we know this is not right across the province when you
advertise. We believe, now that both the conditions of the
committee have changed and that there has been a step to appoint
an interim Ombudsman, there has been a little bit of pressure
taken off in terms of the time frame we were dealing with.
We would like to explore with
members of the committee the possibility of reopening the
advertising for another period of time-not in any way trying to
delay this. We don't want to see this being drawn out, but we are
trying to provide members of the Legislative Assembly, now that
we are all back here and focused on work of the assembly itself,
with the opportunity to play a role, along with advertising, in
outreach to possible candidates.
As I indicated at the
beginning, I believe through the meeting of House leaders and
communications with the Clerk's office, there has been provided
to this committee an opportunity to hear from a representative
from the Legislative Assembly human resources committee about
what that kind of request would entail and what the options might
be. I would hope there would be an interest at least in exploring
it, not taking a long time today, but at least in exploring
that.
The
Vice-Chair: Is there agreement to go into closed session
to hear from the legislative staff?
Mr
Wettlaufer: Coming from a business background-I never
can seem to get around that-this would seem to me to be a very
extraordinary request, unless those who have already submitted
their applications for the position are not satisfactory,
firstly; or secondly, that we didn't receive any submissions of
application for the position.
In the event that those two
criteria are missing, I would say that the position had been
advertised in the national news media and it would be most unfair
to those who have already applied on time to extend the
application period, and politically it would appear as though
this government is not satisfied with the applicants who have
submitted their applications and that we really want someone of
our choosing. I would feel very uncomfortable with that one and I
have some question in my mind as to whether we would be leaving
ourselves open for a lawsuit.
The
Vice-Chair: If I may, we seem to be getting into some
discussion that might be more appropriate in closed session,
considering we're talking about the process.
Ms Lankin:
On that point, I'd like to have an opportunity to respond and to
assure Mr Wettlaufer of the reason, again, for our concern, but I
don't see the appropriateness of going into closed session when
we're talking about the process. I think the process is one that
should be open. We're not talking about any individuals and/or
making a decision around selection. I think we're talking about
process, and that is a matter of open and public record.
1550
The
Vice-Chair: Then I would just ask us to govern ourselves
cautiously, because we are talking about a process that has
already been set out and we don't want to have it come up into
any type of question at a later date.
Ms Lankin:
If I may continue then, just to respond to the concerns that Mr
Wettlaufer raised, I am not without sympathy; I understand them.
But I draw your attention again to the fact that the agreement
that was arrived at was in two parts, the first part being the
composition of the selection committee and the expressed desire
on the part of the government to have a candidate in place in an
expeditious fashion, not to go the route of appointing an interim
but to move directly into advertising. The second part of that
was the short advertising period, which we agreed to in the
context of the whole package of agreements.
Two things have changed. The
composition of the committee that had been agreed to has now been
changed by a government decision and, secondly, there has been a
decision to appoint an interim Ombudsman, so the time pressure
that the government was working to and convinced us to agree to,
the two-week advertising, now has changed.
While I'm sympathetic to what
you're saying, I think the very fact that it is a member of the
opposition who is requesting a longer period of time of
advertising would contribute to alleviating your concerns that
the government would be held to some standard of not finding the
existing candidates satisfactory or looking to appoint their
own.
Secondly, I think the higher
principle of openness and of full participation of members of the
Legislative Assembly-after all, the Ombudsman is responsible to
this assembly-and the opportunity for us to participate in outreach to people in our
constituency to let them know about this, to enhance the process
of the advertising period, is one that would have been a normal
practice had we not attempted to facilitate the government's
request of doing this before the Legislature came back. In any
other course of action, had it gone through the normal process of
being submitted to this committee, this committee would have
decided the terms of reference for the advertising, the length of
advertising, all of those sorts of things. We'd be doing that
now, we'd all be engaged in that, and other members of the
assembly would be aware of it.
I'm asking, given the changed
circumstances, that this committee take a second look at the
possibility of opening the advertising again. I would like to say
that there is someone here from human resources who could provide
us with some background about the options to do that, and the
committee could take that information into consideration in its
deliberations and decisions with respect to my request.
Mr Jean-Marc Lalonde
(Glengarry-Prescott-Russell): In the past, the first
meeting was just called to elect a Chair, Vice-Chair and the
subcommittee. I know this issue is very important, but at this
time I don't think we should go on any further but bring it back
at the first regular meeting that we are going to have.
I would move at this point
that this subject be brought up at that first meeting.
The
Vice-Chair: Mr Lalonde has asked that we bring this back
to the next regular meeting. Is there discussion on that?
Ms Lankin: I
would have to vote against that. I think it would be
inappropriate to delay consideration of this. As I indicated
earlier, it is not our intent to delay this process. House
leaders have had this discussion. I believe at least one member
of each caucus should have been made aware of this by their House
leader. It was through the House leaders that it was referred to
us here to deal with.
I would think we all share
the goal of the government in terms of having a process which,
while it is open and fair and reaches the greatest number of
Ontarians as is possible, is also expeditious. Unless as a
committee once we've heard the information we feel that we are
unable to make a decision, we feel that we need to seek further
information, I wouldn't want to be a party to a motion simply to
delay the process at this time.
The
Vice-Chair: Mr Spina.
Mr Joseph Spina
(Brampton Centre): Thank you, Chair, and
congratulations.
The
Vice-Chair: Thanks.
Mr Spina:
You think.
I can appreciate, I think,
the position that Ms Lankin is making, but I know that if I was a
regular standing member of this committee, which I'm substituted
on for today, I would want more background on this process to be
provided to the committee members before they sat, by the HR
person, rather than dropping the HR person on us and suddenly
ending up in a cross-examination kind of situation. I think if
some background were provided to the committee in advance, then
it can discuss it in a fair and equitable manner.
I would, based on that,
concur with M. Lalonde's motion, but majority of course would
rule.
Mr
Wettlaufer: I would recommend that we hear from human
resources. I believe we can get the necessary background right
here today and we can make a decision today.
The
Vice-Chair: We still have the motion for Mr Lalonde to
deal with first. Any other discussion on that?
Mr
Wettlaufer: Put the question.
The
Vice-Chair: Call the question? All in favour of calling
the question? All opposed?
Mr Spina:
Are you talking about M. Lalonde's motion?
The
Vice-Chair: Calling the question is in favour of putting
the question forward right now, so that's what we're talking
about.
Ms Lankin:
And voting in favour of ending debate.
The
Vice-Chair: So all in favour of calling the question? In
other words, you're ending debate on the question.
Mr
Wettlaufer: We're ending debate on the question?
The
Vice-Chair: We're ending debate on the question that Mr
Lalonde has asked-
Ms Lankin:
Wayne, vote yes. Trust me.
Mr
Wettlaufer: That's not the motion.
The
Vice-Chair: It's not the motion. You're simply ending
debate so that we can call the question.
Mr
Wettlaufer: All right.
The
Vice-Chair: All those in favour? Anyone opposed? OK.
Now we call the question
itself. Mr Lalonde would want us to bring this issue back to the
next scheduled meeting of this committee.
All those in favour of that
motion? All those opposed to that motion? The motion is
defeated.
Mr
Wettlaufer: I would recommend that we hear from human
resources presently.
The
Vice-Chair: Is there agreement from the committee to do
that? OK. We're going to recess for two minutes and then go into
closed session to hear from human resources.
Ms Lankin:
Could I ask why we're going into closed session? Again, we're
talking about the process, options for advertising. I think that
if we are going to go into closed session, it would probably
require a motion. I, myself, don't see the need for that.
The
Vice-Chair: It's up to the committee, but from my side,
in terms of recommending it to the committee, we're going to be
dealing with the process itself, specifics coming from human
resources, and since this entire matter might come into question
and there could be some issue of legality down the road or
potential litigation down the road-we don't know-I'd rather hear
from human resources in closed session.
It's up to the committee. Is there agreement from
the committee?
Mr
Wettlaufer: I support the recommendation of the
Chair.
Ms Lankin:
I'm sorry. I'm not in agreement with that.
The
Vice-Chair: Does anyone wish to put a motion that we go
into closed session, then?
Mr
Wettlaufer: So moved.
The
Vice-Chair: All in favour of that motion to go into
closed session? All opposed? The motion is lost. We'll stay in
open session and hear from human resources. And that would be
whom?
Ms Sylvia
Nemanic: My name is Sylvia Nemanic.
The
Vice-Chair: Sylvia. I'm not even going to try on your
last name. I'm sorry.
Mr Spina: Mr
Chair, I thought you were going to recess for two minutes.
The
Vice-Chair: That was only if we were going into closed
session.
Ms Nemanic:
An ad was placed in the Globe and Mail on September 22, 24 and
27, with a closing date of October 6. So it was a two-week
period.
We have received 86
applications: 82 from residents of Ontario and four from out of
province. Four were late applications and were not accepted. That
has been our practice.
1600
The
Vice-Chair: I'm sorry. How many were late?
Ms Nemanic:
Four.
The
Vice-Chair: Thank you.
Ms Nemanic:
Would you like me to respond to the question of
re-advertising?
The
Vice-Chair: Please.
Ms Lankin:
Particularly, if the committee decided that was the way it would
want to go, what options we would have.
Ms Nemanic:
If the committee decides to go that route, which I don't
recommend-I think it jeopardizes the integrity of the recruitment
process; it calls it into question. However, if the committee
does decide to do this, we would have to advise the applicants
who have already applied that it will be re-advertised and that
their application would stand. In fairness, we would also have to
accept the four late applications and I think applicants would be
requesting information as to why it was re-advertised.
Mr
Tascona: Are there any legal consequences of reopening
the application process?
Ms
Nemanic: I think we could be open to court challenges.
The individuals who have applied did so in good faith. There was
a time period of two weeks allotted and I think those applicants
would wonder why they are not the only ones competing now. There
would be a bigger pool of individuals who certainly have the same
opportunities as they did to apply by October 6. So I think it
opens us up to court challenges.
Mr
Tascona: I didn't see the wording on the advertisement,
but was the wording that there was a firm deadline? How was it
presented?
Ms
Nemanic: The ad does say to apply by October 6. It is a
firm deadline.
Mr
Tascona: Did it say that there would be no applications
received after that date?
MsNemanic: No, but that's understood in lots of
advertisements.
Mr
Tascona: That's fine, thanks.
Mr
Lalonde: Sorry, the sound system wasn't working at the
beginning and I didn't hear what you were saying. Did you say
that we have received a number of applications prior to the
deadline?
MsNemanic:.Yes, we have.
Mr
Lalonde: How may have we received?
MsNemanic: We have received 86 applications.
Mr
Lalonde: And four of them were late.
MsNemanic: Yes.
Mr
Lalonde: Why should we go back and publicize or reinvite
the people to apply, then?
Ms Lankin:
I don't think you can ask Sylvia that; you have to ask me
that.
Mr
Lalonde: Ask who?
Ms Lankin:
You have to ask me that. I'm the one making the case, not
Sylvia.
Mr
Lalonde: Is it because no one qualifies for the job?
Usually, when you re-advertise it's because no one has qualified
for the position. I used to be in human resources and I can tell
you that there's no way we could invite or publish again unless
we didn't have anyone qualifying for the job. This is why I'm
asking, why should we go back?
The
Vice-Chair: Yes, I understand. Sylvia is simply telling
us the facts as they are. Mr Smitherman, you're next, please.
Mr
Smitherman: I have two questions. The position that
we're talking about is a very specialized one and it's very
significant in the operation of this place. Is two weeks a
standard response time or was this an expedited process?
MsNemanic: It's an average process. There
certainly have been longer time periods but two weeks is
average.
Mr
Smitherman: So you sometimes have one week?
MsNemanic: No.
Mr
Smitherman: So it's not average, then.
MsNemanic: Well, two weeks is a minimum. We have
had longer time periods. For instance, if there's a position that
was advertised in the summer and we know there's a certain time
period when individuals are on vacation, it may be advertised for
three weeks. It depends on the position, but two weeks is
normal.
Mr
Smitherman: What can you tell me about the status of
sort of analyzing the respondents that have come in? I note your
strong view with respect to the difficulties of the perception,
but set that aside just for a second; we're all going to be very
conscious of that, I think. What's the status of the analysis in
terms of qualifications of those 86 respondents?
Mr Spina:
A point of order.
The
Vice-Chair: We're getting into more specifics of
individual applications.
Mr Smitherman: This is entirely a
process question. I'm not wanting to know whether you have found
a candidate who is suitable. I'm wondering, at what stage in the
process is the analysis of the group of people who have
responded? At what stage in the process is the status of the
applications?
The
Vice-Chair: Mr Smitherman, the actual process is that
the applications would be coming to the subcommittee and then,
with recommendations, to this committee. Human resources would
not be dealing with that. They just hand over to the
subcommittee.
Ms Lankin:
Actually, I think there is a process of screening of applicants,
and I think Mr Smitherman is asking just where in that process
the human resources department is. There is a role that they play
before it comes to the committee.
The
Vice-Chair: OK. Thank you.
Ms
Nemanic: We have developed proposed screening criteria
for the committee to review and we have done an initial screening
based on that, if the committee so agrees with it.
Mr
Smitherman: Would you say that a characterization of
"preliminary" would be appropriate?
Ms
Nemanic: Yes.
The
Vice-Chair: If I may, the preliminary screening of those
would still come to the subcommittee?
Ms
Nemanic: Absolutely. Yes.
The
Vice-Chair: With your screening criteria, to the
subcommittee?
Ms
Nemanic: Yes, absolutely.
The
Vice-Chair: So they would still go to the
subcommittee?
Ms
Nemanic: Yes.
Ms Lankin:
If I could just elaborate on that, if the subcommittee returns
the criteria to the human resources department with a change, for
example, they would have to conduct the screening process
again-the pre-screening, let me say. So it is very much
preliminary and there is still an opportunity to affect that
process.
Just a couple of quick
questions. You said you think the applicants would wonder why.
The committee, if it makes a decision, has reasons that would be
set out. With respect to the Legislative Assembly and with
respect to a position that is being appointed that is responsible
to the Legislative Assembly-and the members herein comprise the
Legislative Assembly-surely the normal process, which is that the
committee makes a decision with respect to the period of
advertising, which wasn't followed in this case, and the fact
that the committee has now asserted its right, if we chose to do
that, to amend the period of advertising and add to it, would be
grounds. You ponder that they might wonder why. I ponder that
they might understand.
You seem to take the next
step and think there would likely be a court challenge. Have you
had any experience in the past with cases where an advertising
period has been reopened that has led to a court challenge?
Ms
Nemanic: I don't know of a case in the assembly that we
have reopened. Possibly after you've gone through the application
process and the interview process and haven't found a candidate,
then obviously there has been re-advertising, but I don't think
it's been done at this stage.
Ms Lankin:
Mr Chair, I have some comments I would like to make but I don't
have any further questions for Sylvia. I thank her for her help
today.
The
Vice-Chair: I think there's a question over here,
though.
Mr
Tascona: I just wanted to confirm that steps have been
taken in terms of reviewing the applications. That's correct?
Ms
Nemanic: That's correct.
Mr
Tascona: I also want to confirm that you have never
reopened the process unless there were no qualified
candidates.
Ms
Nemanic: I'd have to check to give you a definitive
answer, but to my knowledge, no.
Mr
Tascona: Did the advertisement indicate that it's within
your discretion to reopen the process or redo the process if
there wasn't a qualified candidate?
Ms
Nemanic: It's silent on it. There is no reference to
reopening or what would happen if we didn't receive applications
or anything like that.
Mr
Tascona: Are there any other circumstances other than
there not being a qualified candidate where you would reopen the
process?
Ms
Nemanic: I would say if the job description really
changed from the time that you advertised to the next step, if
there were significant changes so that the ads were completely
different, then that would-
Mr
Tascona: Has that occurred in this situation?
Ms
Nemanic: Not to my knowledge.
Mr Spina:
To Ms Lankin, I listened to your preamble, Frances, and I was
trying to understand the reason behind why you wanted it
reopened. Perhaps in your concluding comments you were going to
bring that forward, but I wondered if, for all of us, and I know
Jean-Marc was a little late coming in, maybe you could clarify
that better.
1610
The
Vice-Chair: Before we go there, are there any other
questions for Sylvia?
Ms Lankin:
Just one quick one. Sorry, I said I didn't have any more.
The
Vice-Chair: Go ahead.
Ms Lankin:
When Mr Tascona asked if there are any conditions under which you
would reopen, I suspect one of them might be if you were directed
to by this committee.
Ms
Nemanic: Absolutely. Sorry.
Ms Lankin:
That's OK.
The
Vice-Chair: Valid point. Are there are other questions
for Sylvia?
Mr
Tascona: Have you ever been directed by a committee to
reopen the process?
Ms
Nemanic: No.
The
Vice-Chair: Are there any other questions? This would be
the time. Thank you, Sylvia.
Ms Lankin:
Thank you very much.
The Vice-Chair: Would you like to
respond, please?
Ms Lankin:
Sure. Let me start with reminding committee members that when a
standing committee has been given jurisdiction over the
appointment of a position such as this, it is normally from day
one in the process straight through. We meet as a group; we
determine such things as reviewing the job description; we would
make a decision with respect to how we would advertise, where,
the number of papers, the number of days of advertising and what
the period of time would be before the advertisement was closed.
That didn't happen this time.
I'm trying to point out to
you that there has been a bit of a flaw in the process from the
point of view of members of the Legislative Assembly, not from
the point of view of the public, although I think it has a great
impact and that's why I bring it to the committee.
Start again. The government
House leader came to the other two parties in September and said,
"The Legislature won't be coming back for some time." We were not
aware, any of us, at that point in time of what that date would
be. "We would like to see if we can arrive at an agreement that
would facilitate expediting the process of two important
positions that are responsible to the Legislative Assembly, the
Ombudsman and the Environmental Commissioner. Here's the process
that we propose: We establish a three-party committee comprised
of one representative from each party."
That is with precedent, by
the way, in the past. There have been other occasions, under
other governments, where the appointments have been approached
that way. It is a challenge of co-operation to the parties to go
through a process and arrive at what is truly a multi-partisan or
non-partisan appointment of very important positions that have a
role of responsibility to the public of Ontario in safeguarding
public interest and a role of accountability as well to members
of the Legislative Assembly. Each of us knows we have our own
relationships from our offices on behalf of our constituents with
offices such as the Office of the Ombudsman. It's quite apart and
separate from the role of governing, government and opposition;
it's a very different relationship.
As part of the proposal to
establish this three-person committee and to expedite the
process, the government House leader asked that we agree to a
shortened time frame. As Sylvia has pointed out, two weeks is the
minimum. There are many appointments that go through this
process, as you know, and two weeks has been a standard, although
it's the minimum, for a number of them, but for really important
positions, it has in the past been longer, three or four weeks. I
point out to you that it has often been, because it goes through
the process of decision-making of a committee, necessarily done
while the Legislature is sitting and MPPs have a different
opportunity to participate in augmenting the role of paid
advertising, whatever the committee decides that may be, in terms
of outreach to their constituents, people who have written their
offices who are interested in various appointments, people they
may know of in their communities.
In order both to accomplish
an important precedent in terms of the structure of the committee
and to facilitate the government's desire to appoint someone in
an expeditious fashion before the appointments ran out, we agreed
to that as a package.
Subsequently, the
government House leader received direction that in fact the
three-person committee was not a go, and that it would be
referred to a standing committee. Unfortunately, the instructions
to the Legislative Assembly were not revoked at that point in
time. It was not referred in its entirety to the standing
committee for us as members then to make the determination with
respect to the time period. We feel that the time pressures are
no longer there because the government has taken the step, along
with agreement from the other two parties, to now appoint an
interim person to that position to allow the process of selection
to unfold.
I feel, as a member of the
Legislative Assembly, that in attempting to facilitate something
on an all-party agreement, which has now not been implemented in
its entirety, I have, if this continues, been deprived of or have
forgone the opportunity to participate fully as a member of the
Legislative Assembly in an important appointment and position
that is responsible to us, not responsible to the government of
Ontario or to parties but to members of the Legislative Assembly
in its entirety.
Sylvia did say, for
example, that if you'd gone through an application process and
had screened and come to the determination that there were no
qualified applicants-I'm paraphrasing-she assumed on that
occasion there would be reason to readvertise. What I'm
suggesting to you is that there is reason for this committee to
take the decision to readvertise, given the way we have been
shortchanged and cut out of this process and the fact that the
all-party agreement that had been arrived at has not been
fulfilled in its entirety and therefore the role of the standing
committee has been quite truncated.
We've not had any input
into the upfront process around the job description, the
advertisement and the outreach and the methods of outreach for
one of the most important positions and a counter balance to
government power, the Office of the Ombudsman. We've not had any
opportunity to be part of the upfront decision-making; we simply
now are going to be part of the determination of the actual
successful applicant.
Now that the Legislative
Assembly is sitting, there is an opportunity for us to play a
role to augment the advertisement. I'm asking the committee to
consider the possibility of extending the advertising, reopening
the advertising. If we are very concerned that there would
actually be legal consequences-it seems like this is a common
assumption around this table, but personally from my experience
in areas of human resources, I'm not convinced of that-I would be
prepared to ask for an actual legal opinion on that through leg
counsel to inform the committee and to take serious account of
that.
Again, I'm not attempting
either to delay or to create a problem in the process-that's the
last thing I would want to do-but I do want to speak strongly for
the openness of the
process, the perception of openness and the importance of
continuing to assert control over the process by members of the
Legislative Assembly, as opposed to the government of the
day.
Mr
Wettlaufer: Again I have to go back to my business
background. I'm not meaning this critically, Frances, when I say
that what you gave was a long and convoluted explanation of what
happened here. I'm not being critical, I want you to know. I just
feel that you're making something much more complicated than it
needs to be.
When I was in business, I
can remember-this is about 15 or 20 years ago now-that the
president at one time was responsible for branch operations for
Canada, and he applied for a branch manager. In the interim,
after the deadline for applications was closed, he said, "Wayne,
I'm putting you in charge of branch operations for Canada, you
make the selection," a very similar situation to this. I don't
think it matters who makes the selection or how. We have 82
applications. I'm assuming that 82 is many more than adequate
from which to choose. I just can't see that there would be any
reason whatever to extend the process.
1620
Mr
Lalonde: According to what we were told by the human
resources person, we have followed the proper procedure at the
present time. But my question would be, have we opened up any of
those letters that came in from applicants for this position?
Mr
Wettlaufer: Yes, we have.
The
Vice-Chair: Have we as a committee? Human resources
has.
Mr
Wettlaufer: Human Resources has screened them.
Mr
Lalonde: We have opened it all. Thank you.
I would agree to go back if
we had followed the proper procedure, as established and agreed
upon. But at this time, I would be very scared.
Mr Spina:
I agree with you, Jean-Marc, and with my friend Wayne, only
because the process has to be as open as it should be.
Frances, I fully appreciate
the time frame that you're looking at as the flaw in the system,
that the committee had not been sitting, but I guess that's where
we have the political environment beginning to influence the
clean and clear process that it ought to be. Nevertheless, the
political environment has an influence, because as politicians,
as elected members of the three parties, we are the ones who
create the environment under which the Ombudsperson is
appointed.
Granted, the committee was
not sitting; granted, the committee did not have input to the
criteria under which the current list of candidates have
submitted, on a timely basis, their applications. However, all
three parties did, by your explanation, have the opportunity to
have input to that criteria process. Therefore, if we don't have
the faith, as members from all three parties, in our House
leaders, then what we are really doing if we change that at this
point is overturning the trust that we have in our House leaders
collectively.
That's the problem I have
with our changing that process at this point. I would be very
concerned at overturning the process subject to the process being
completed under its current criteria and time frame, so that the
applications that have been received are screened, the process
comes before the committee and we pick up the ball where it has
been left to us.
If, at the end of that
process, for whatever reason, the committee decides that they
want to change the criteria, that they are not satisfied with the
applicants who have been presented to date, then I think legally
we are in a position to proceed forward. I'm not a lawyer, but I
know enough about human resources management from businesses that
I have been involved in that I would be leaving myself liable to
the applicants who have applied.
My résumé, my CV,
has been examined and now suddenly I may or may not want to
apply. But, do you know what I might do if I really wanted to
play havoc with this system, what I could do as an individual? I
will not submit my CV the second time, having been told that it's
going to stand, as Sylvia explained, for the extended time
period, but I'm going to sit back. If I didn't receive an
interview and, even further, if I didn't receive the job, boy,
I'll tell you, if I really wanted to, I could play havoc with
this whole process and bring it into the legal system.
That's my concern, that the
minute the process enters the judicial system, then it tarnishes
entirely the role of the Ombudsman. I leave that situation.
While I appreciate your
concern, I really have a great deal of concern that we would be
in a worse position afterwards. A candidate as admirable as
another, maybe even better, might come forward. But that's a very
large risk, and unfortunately, in society there are many good
candidates we lose in the process because of the way we have to
define it and adhere to it.
Ms Lankin:
I can read the way the tide is going here and will accept that. I
don't want to prolong the debate, I just want to respond to a
couple of points and make sure that it's clearly on record.
Raising the spectre of
legal action, unless we're prepared to take the step to get legal
council to provide us with that information and their best
advice, I think, is unfair. We don't know that ourselves. As you
said, you're not a lawyer. I'm not lawyer. We don't know that it
is in fact a possibility or a probability.
Second, the point that you
make with respect to the agreement of House leaders is exactly
the point that I'm making. The agreement of House leaders was not
fulfilled, the agreement that the parties entered into in good
faith to expedite the process, in acceding to the government's
request to have someone in place without going to the point of
having an interim Ombudsman to have someone in place before the
term of the Ombudsman expired. That package of agreements has not
been implemented.
What has happened is that
the role of the very body to which the Ombudsman reports, the
Legislative Assembly,
and the Legislative Assembly committee, to which the process has
now been referred, as opposed to the original agreement, has been
usurped.
Mr Wettlaufer raised an
example from his own past work history and said, "It's exactly
the same." I point out to him, it's not.
The Ombudsman, a creation
of legislation, reports to the Legislative Assembly. There is a
different role for us as MPPs than simply as representatives of
our parties with respect to this issue. The normal process, which
would have a committee sitting, means the Legislature is sitting,
means MPPs are here, active in Legislative Assembly work as
opposed to in their constituencies on constituency work and can
be active members and participants in the process for the
advertising and the selection of one of the most important
positions in counterbalance to government powers in our
institution.
I just feel very strongly
that the role of MPPs has been usurped here. I hear very clearly
from Sylvia her concern about jeopardizing the integrity of the
process. I think that has been done and has not been done by the
members of the Legislative Assembly or this committee, for that I
feel a great deal of regret. I'm sorry if the committee finds
itself not able to agree with that and take action to rectify
that on behalf of members of the Legislative Assembly. I'll leave
it at that.
Mr
Smitherman: Are there additional speakers, Mr
Chairman?
The
Vice-Chair: You're the last one so far.
Mr
Smitherman: I'll pass.
The
Vice-Chair: What are the wishes of the committee
then?
Ms Lankin:
I guess at this point in time I should put in an official motion
and the matter can be decided.
The
Vice-Chair: That would be appropriate.
Ms Lankin:
I would like to request that the subcommittee meet to review
legal advice and to make a recommendation to be brought back to
this committee with respect to reopening the period of
advertising for the position of the Ombudsman.
The
Vice-Chair: Any debate on that?
I'll call the question
then. All those in favour of Ms Lankin's motion? All those
opposed? The motion is lost.
So, then, the subcommittee
itself will be meeting in the near future. At this time, I guess,
we ask that the committee itself stand adjourned until the call
of the Chair. Thank you.
