HALIFAX, TUESDAY, FEBRUARY 25, 2003
STANDING COMMITTEE ON HUMAN RESOURCES
9:00 A.M.
CHAIRMAN
Mr. Jon Carey
MR. CHAIRMAN: Perhaps we could get underway and we will start with introductions. Mr. Boudreau, if you would start, please.
[The committee members introduced themselves.]
MR. CHAIRMAN: Good morning to everyone. We have a small number of appointments to look at this morning. I think there is only one that is multiple so we can do them en bloc, if you like, if that's satisfactory to everyone, or do you want to do the last group individually?
MR. GRAHAM STEELE: No, en bloc is fine.
MR. CHAIRMAN: Very well.
MR. RONALD CHISHOLM: Mr. Chairman, the Department of Environment and Labour, Workers' Compensation Board, I would move Betty Jean Sutherland as a labour member.
MR. CHAIRMAN: Is there any discussion?
Would all those in favour of the motion please say Aye. Contrary minded, Nay.
The motion is carried.
1
MS. MARY ANN MCGRATH: Mr. Chairman, the Office of Health Promotions, Gaming Foundation of Nova Scotia, I would move Hubert E. Devine as chairman and board member.
MR. CHAIRMAN: Would all those in favour of the motion please say Aye. Contrary minded, Nay.
The motion is carried.
MR. JOHN CHATAWAY: Mr. Chairman, Service Nova Scotia and Municipal Relations, the Real Estate Commission of Nova Scotia, Charles Read Lorway as a commission member, I move his name for that position.
MR. CHAIRMAN: Is there any discussion?
Would all those in favour of the motion please say Aye. Contrary minded, Nay.
The motion is carried.
MR. RONALD CHISHOLM: Mr. Chairman, to the Department of Tourism and Culture, Public Archives Board of Trustees, Peter M. Crowell, Marie E. DeYoung and Dr. Allan E. Marble as members and I so move.
MR. CHAIRMAN: It has been moved. Is there any discussion?
Would all those in favour of the motion please say Aye. Contrary minded, Nay.
The motion is carried.
That concludes our appointments.
We have correspondence that I think everyone has received from Mr. Steele. Upon receiving the correspondence, I had a discussion with the minister. He has informed me that he is satisfied and confident that he has received good legal advice and is satisfied with the information he has been given and doesn't see a problem. That's the position that I've been told by the minister.
MR. STEELE: Are we on that item for discussion now?
MR. CHAIRMAN: Yes, we are.
MR. STEELE: Perhaps, Mr. Chairman, I heard my colleague, the member for Cape Breton The Lakes, first, if he wants to go first.
MR. CHAIRMAN: Fine.
MR. BRIAN BOUDREAU: I'm just wondering if the minister put that in writing. Is it in writing or did he just . . .
MR. CHAIRMAN: I can certainly ask him.
MR. BOUDREAU: I would appreciate that, please.
MR. CHAIRMAN: I believe he was quoted in today's paper, actually.
MR. STEELE: Mr. Chairman, I wrote these letters because of the concern that I have over the government's news release of January 29th. This is not the time or the place to go over the details of the Kaiser settlement but what struck me about that news release and the reason I'm raising it in the Human Resources Committee today is that the minister has announced in that news release his view that because of the changes being introduced by the government that appointments to 28 agencies, boards and commissions no longer need to be submitted to this committee for approval. The minister does not say which 28 ABCs those are. He doesn't explain in the news release the reason why that is his view.
Throughout the year-long process of devising an implementation plan for the Kaiser settlement, there has not been one word of communication between the minister and this committee. He hasn't sought the input of this committee, he hasn't corresponded with the committee. He made the announcement on January 29th without informing this committee and yet what the minister has done will profoundly affect this committee.
It appears to me, and I'm open to being corrected by the minister, that the reason why he feels that there are now 28 ABCs that no longer need to come before this committee is because of Paragraph 5(b) of the committee's terms of reference which says where candidates are selected by an open competition, it doesn't need to be submitted to this committee. I beg to differ most strongly with the minister about whether the process that he announced on January 29th amounts to an open competition. In fact, far from increasing accountability, the ironic result of the Kaiser settlement is going to be that it's going to decrease accountability because these advisory committees that have been set up will do their work in secret. It's not at all clear who, if anyone, they are accountable to.
Then they provide not a name to the minister, they don't make a decision about who the best qualified candidate is, as you would do anywhere else in the Public Service, no, they provide a list of names to the minister and then the minister makes a choice from the list. That all happens in secret, behind closed doors, and the minister is free to apply whatever criteria the minister wants and he is not accountable to anyone for that choice.
Now, I'm not the only one concerned about this. I've repeatedly raised concerns about the appointment process in Nova Scotia but here is somebody else's view. A very recently published article in the Journal of Canadian Public Administration by the very well-known and well-respected political science professor at Dalhousie, Peter Aucoin, co-authored with a doctoral student, Elizabeth Goodyear-Grant, reviews in detail the appointment process in Nova Scotia. Professor Aucoin and Ms. Goodyear-Grant conclude by saying, "Ministerial selection will always be an affront to the merit principle, even where ministers must select from a shortlist that is not of their own making." There is no way that you can interpret the new process as being an open competition thereby removing these appointments from the purview of this committee and yet that is exactly what the minister has said is his interpretation of the rules.
Now, as we all know, it's not up to the minister to decide how this committee goes about its business. It's not up to the minister to interpret the rules and to dictate to this committee what the proper interpretation of the Rules of the House are. What I'm asking for today is the support of the committee to refer the matter to Legislative Counsel for an opinion on whether the appointment process, as announced by the minister on January 29th, whether it's a reasonable interpretation of that process to say that those 28 tribunals no longer need to have their nominees submitted to this committee for approval. That's the motion that I put on the floor.
MR. CHAIRMAN: We have a motion. Do we have a seconder?
MR. BOUDREAU: I'll second the motion.
MR. CHAIRMAN: Dr. Smith.
DR. JAMES SMITH: Just for my information, Mr. Chairman, maybe I've missed it but what information have we had of a description of what Mr. Steele is speaking of this morning relative to these committees? As a committee, what have we received on the changes?
MR. CHAIRMAN: We have received no information other than what you have here. My understanding of this committee is, it's mandate is to approve or reject names that are
brought forward and that is the mandate of the committee. I don't see it as getting into what Mr. Steele is - the process, in my short time here, has been that there has never been satisfaction from some, of the process, but my understanding is that this process that they're using now, I believe, is the same process that judges are appointed by and the URB is appointed by. If that is the case, maybe that's not a perfect system but it is a system that appears to work and I don't know if there's a better system.
I don't think it is our mandate to come up with a new system. As MLAs we have the responsibility to have input to the minister and to the caucuses and so on, but as chairman of this committee, I was under the impression that we were here simply to make a decision whether the people, whose names are brought before us, are appropriate. If they are qualified candidates we approve them, and if we don't think they are we reject them.
DR. SMITH: I don't know if it is just myself who missed this but there has been a change in the material coming, there has been a change in the process, according to what the minister has been quoted as. I haven't had that in writing from this committee. Is there any way we can have some information that is relevant to the changes and how that's impacting the process? We are part of that process as a committee. We are all busy and have other things to do so there's no sense coming here if the process is flawed. So if there is background information that the committee could have, I would like to have it spelled out a bit more than just from the media.
MR. CHAIRMAN: We will request that from the minister, Darlene.
DR. SMITH: Mr. Chairman, the other thing I have a concern about and while we have supported Mr. Steele's motion this morning, anytime you are trying to make good government based on one case, I think there is a danger there because there is never enough. I think we're dealing with two processes here and there should be a conclusion to particular concerns, relative to one particular case. The other issue is, how this committee works and how this process works in government and that reflects on how strong the process of open government is. So I'm really concerned that we're mixing the two things here and I don't understand the process that we're involved in, as I thought I had.
MR. CHAIRMAN: We will ask the minister for a directive and information and have it come back to members of the committee. Mr. Taylor.
MR. BROOKE TAYLOR: Mr. Chairman, I guess I would just like to comment that over the years there has been - it doesn't seem to matter whether you sit in Opposition or in government - more than a fair share of negative comment about the Human Resources Committee. As you pointed out, our mandate - whether we particularly like it or not - is to approve or disapprove and occasionally, we do stand a nomination for appointment at the committee level. But I have noticed and I think most members who have been around the table for a number of years have noticed that there have been a number of improvements made to the process.
With all respect, the member for Halifax Fairview uses this - from my perspective and vantage point - as an opportunity to climb on a soapbox and it doesn't seem to matter whether the people are duly qualified. We established a screening committee, as a government, to analyze and examine the resumés and applications that come in to the Executive Council. They are screened, the names come here for approval or disapproval, that
never seems to satisfy the NDP caucus. Now, as per an agreement that was reached with the Human Rights Commission, we have established a process and in fact I understand it's one of the most open processes in all of Canada and again, that's being waved as a red herring.
[9:15 a.m.]
There just doesn't seem to be any satisfying the NDP members on this committee, especially the member for Halifax Fairview, when, in fact, we have made great strides to improve the process. I don't know what - short of submitting the names to that member and letting him examine them and taking them away from Cabinet - we could do to actually appease the member for Halifax Fairview and his NDP caucus colleagues.
I think we have made great strides. Perhaps there's some room for improvement, I think there always is at most committees, but to continually come in here and find a red herring to wave, I think it's very unproductive.
MR. CHAIRMAN: Any further discussion? Mr. Steele.
MR. STEELE: Mr. Chairman, you said it's not our mandate to come up with a new system, that's true and that's not what I'm proposing here today. What has happened is that the minister is dictating to this committee how to interpret the rules that govern this committee. Our job in this committee is to look at the nominees that are given to us and to approve them or not approve them, I know that and I accept that. I don't think it is the most productive way for this committee to structure itself, but nevertheless, that's our role.
What's happening here is that the government is telling us what it is that they choose to submit to us. Now we have rules governing us, it is a Rule of the House of Assembly saying you have to submit these names to the Human Resources Committee and then I think there are four exceptions. One of them is if there is an open competition, but who gets to decide whether it's an open competition or not? I guess that's the issue here, is it the minister who gets to decide or is it this committee that gets to decide? That's what the issue is that I'm raising today.
The various issues raised by the member for Colchester-Musquodoboit Valley, the only people who say that we've got one of the best systems in Canada is the members of your government, nobody else says that; it's not one of the best systems in Canada. I suppose that the members of the government can convince themselves of that if they keep repeating that line, it's one of the best systems in Canada, but nobody says that except for them.
The member raised the question of what would satisfy me. I've been clear from the very beginning, from the first day I sat on this committee two years ago, on what would satisfy me. What's missing here is any kind of accountability for the final choice.
John Hamm came in and implemented the system of screening committees. The problem is that those committees met in secret, applied secret criteria and the one time that I actually asked the committee members to justify their decision - this was in relation to the appointments to the Liquor Corporation - they refused, citing an oath of confidentiality. That's not an open system.
In this new system we've professionalized a little bit with an advisory committee but they still meet in secret and they produce a secret list that no one else has a right to see and they give it to the minister who makes a secret choice and nobody has a right, at any point, to review what it is the minister has done. That is not an open and accountable process and that's all I'm asking for is for there to be some accountability.
Now the government is under a legal obligation to implement the terms of the Kaiser settlement. That settlement says that the government will at every stage, introduce elements of accountability, and that's exactly what they haven't done. One of the things they have done, one of the sneaky things they have done - and I don't mind using that word - is they have declared that in their opinion they no longer need to submit the names for 28 agencies to this committee.
Look at the book we have today, it's one of the thinnest books we've had, I think, in the two years I've been here. We went through it in one minute flat. This is going to be the norm, not the exception under this new system, if we let the government declare to us how to interpret the rules that govern us. That's why the motion that I have put on the floor today is very simple.
What are the government members afraid of? If you're right, you'll get an opinion from Legislative Counsel that you're right. If you're wrong, you have to live with that. So the motion that is on the floor today, and is still on the floor, is that we refer the matter to the Legislative Counsel for an opinion about whether the process announced by the government
in its news release on January 29th satisfies the requirements of Paragraph 5(b) of the Rules of the House of Assembly to remove appointments to those 28 ABCs from the purview of this committee.
MR. CHAIRMAN: Is there any further discussion?
MR. BOUDREAU: Just in support of the motion, Mr. Chairman, perhaps the minister does have the right to alter the process. If he does, I'm only a rookie here, so I don't know that. I do believe that the people of Nova Scotia have a right to know if this system has been altered and, of course, the people who are applying for these positions certainly have a right to know. I think that as elected individuals, we should at least have the information about what type of process is going to be in place here, really, in all fairness. Although the mover may be on a soapbox, I'm not. I'm serious about this. I believe the minister should provide a detailed explanation to this committee. I think that's fair and reasonable.
MR. CHAIRMAN: I believe the minister will provide the information on the process, and we will certainly get that for the committee.
MR. TAYLOR: Just before you bring that to a question, I would like to add that it's really difficult here to have it both ways. I recall when this committee was established and the existing legislation was made to support it. I think we all received copies of the legislation. Not too long thereafter, a member from the Liberal caucus, I think it was the former member for Colchester North, commented that he felt that this committee was essentially a joke. I'm not going to reiterate what I had said earlier about the improvements that have been made around this table to improve the process, but that was done just recently.
I think we are moving in the right direction, but you can't have it both ways. If you want a citizen advisory committee established as per the Human Rights Commission agreement, and now you're saying you don't have any confidence in that system, to put quasi-judicial or adjudicative boards into the purview of the committee and Cabinet, it's terribly difficult to have it both ways. Like I said before, there's absolutely, perhaps, no satisfying some members on the committee as to the workings and responsibilities of this committee.
MR. RONALD CHISHOLM: Mr. Chairman, I would just suggest that probably if it wasn't for some bad decisions that the Liberals made when they were in government, we wouldn't be at this point. That's all I have to say.
MR. CHAIRMAN: Is there any further discussion on the . . .
DR. SMITH: If the Tory Government hadn't run the province into bankruptcy (Interruptions)
MR. CHAIRMAN: I think we're off track of the motion here. Perhaps we could get back to the motion. Is there any further discussion on the motion?
DR. SMITH: I think it's ironic - I go back to the bad case making bad law again. It's ironic that out of the Kaiser decision and the commitment to implement some changes following that and the agreement that followed, that we're going to a less open and a less accountable system. I would say to the members here, we're functioning within the British parliamentary system, something that I've really enjoyed. I've enjoyed the caucus structure and the committees. So what is there to be afraid of? Legislative Counsel doesn't have two heads, and I don't think they're going to bring the government down. The people of Nova Scotia will take care of that.
Why would we be afraid to have an interpretation of our rules by the Legislative Counsel? It's not an onerous task. It's not likely to cost a lot of money or extra expenses. That's why I'm supporting this this morning. The other side of the coin is that I'm concerned
that we're moving to a less accountable and a less open system. It's ironic that the commitment to make it more accountable would be moving in the opposite direction.
Also, in regard to comments made by the past member for Colchester North, whose memory we are all very fond of, some of his statements, but I think that if you want to look a little further you should finish the quote that I would imagine the member for Colchester North at the time felt that this committee may have been a joke, as you've said, because it did away with patronage to some extent. I think you might find that that member had certain strong feelings, probably shared by most members of the Tory caucus here this morning. I think it's a bit of a quote out of context, reflecting on a past member, that he would be disappointed if you didn't finish saying that he was much in favour of patronage and that this was really going against, probably, his wishes. I would like to make that comment. (Interruptions)
MR. CHAIRMAN: I'm not sure we should be discussing the opinion . . .
DR. SMITH: No, but it's on the record here this morning that a member of the Liberal Government said that this committee was a joke.
MR. TAYLOR: I was here.
DR. SMITH: And he probably did. We could get Hansard to find that out. But I think it was not for the reasons that the member - with all respect - is bringing before the committee this morning. I think there were other reasons that he felt that way.
MR. TAYLOR: Not to comment on Dr. Smith, because Dr. Smith knows as well as I do the former honourable member's position on patronage, but that aside, regarding this issue before us today, clearly, why I won't be supporting the motion is because it's not in our mandate and I do think that if the NDP feels really strongly about this there is a vehicle to bring it before. There is a committee that has it in its mandate to deal with things that take place at the committee level and at the House, and that's the Committee on Assembly Matters. There's no question about that, that all-Party committee has an opportunity, from time to time, and there have been issues that have come before that committee, mind you. It's certainly not within our mandate at this committee.
MR. CHAIRMAN: Is there any new discussion?
MR. STEELE: Let me just make sure that I'm clear on this, Mr. Chairman. Let me be clear on this, this committee does not have within its mandate the power to ask its legal adviser to give legal advice on the interpretation of the terms of reference governing this committee? Is that your position? Is that the member's position?
MR. TAYLOR: Mr. Chairman, I don't think it's time for the honourable member for Halifax Fairview and I to get into a question-and-answer period here. The member knows full well that the NDP caucus can, on their behalf, request any interpretation that they want from whoever, but I'm just suggesting that the all-Party Committee on Assembly Matters, it's in their mandate to deal with issues such as this. As frivolous as it is, it could be referred to that committee by the NDP caucus, if they're so inclined.
MR. CHAIRMAN: If there is any new information about the motion, if it could be presented, if not - Mr. Boudreau.
MR. BOUDREAU: Mr. Chairman, if I may. In all fairness, if the process is being altered, I don't know why the government members are all so uptight here. It's such a great process that you're changing. If I was a part of that government over there, I would want to educate the community out there, Nova Scotians, to make sure that they understood what a great process they've put in place here. I don't understand why everybody is so paranoid about this particular motion. It's a simple motion. It's quite understandable. I think that as elected individuals and members of the committee, we owe it to ourselves to support the motion.
MR. CHAIRMAN: Is there any further discussion?
Would all those in favour of the motion please say Aye. Contrary minded, Nay.
The motion is defeated.
Mr. Hebb, we had a memo from our committee clerk, Mrs. Darlene Henry, regarding the confidentiality policy, and I would ask if you could perhaps just take us through any comment on it. It's not a new policy, it's just a clarification of what has already been in place.
MR. GORDON HEBB: Mr. Chairman, as you've stated, we don't believe this policy is new, but it was thought that it would be useful to set out what it is believed the policy is. This would be put in the front of the briefing book that's sent out each time, so that it would be clear to everyone who has access to the booklet what the policy is.
[9:30 a.m.]
Just to summarize it briefly, it's just making it clear that the information is available only to the committee members or their substitutes or to the research staff that need access to it in the caucus offices, and then after the committee has dealt with the information that only the information respecting the applicants who have been approved and where the remuneration is at $100 or more a day can the information then be made public. That's basically the essence of what's in the policy.
MR. CHAIRMAN: Are there any questions regarding that?
MR. STEELE: I had spoken to the committee clerk late last week about this, and it seemed to me that the policy went further than has been the actual practice in the past. It is my understanding that a resumé didn't need to be included in this book if the remuneration was less than $100 a day, but it was always my understanding that if it was included and the person was appointed that any information this committee had about somebody who was appointed was public. It seems to me that this policy as written here is more restrictive than was my understanding of the practice, not to mention that just generally it's my view that it's a bad idea to have restrictions like that, where if somebody is appointed to a public position, where they're working in the public interest, they should be ready to have their qualifications put out in public. I'm really just generally opposed to any restriction on that.
MR. HEBB: I believe - I haven't got it in front of me, but - the information that goes out that indicates to the public as to what will be made public sets out this . . .
MRS. DARLENE HENRY (Legislative Committee Clerk): Yes, it's always been in this ad since they started this ad way back, I believe it was in 1998, people who apply to certain boards that remunerate $100 or more, that their application will be made public. Now as to when that was first initiated, where this limit came from, I suspect it was sometime way back when the agencies, boards and commissions first came here. That's always been part of the process.
MR. TAYLOR: From recall, Darlene - you can correct me if I'm wrong - I think what we did at the committee level was establish a subcommittee, a member from each caucus, and we came back with that as a recommendation, that was supported by all three Parties, that if the remuneration was $100 or more, then the resumés, applications, all pertinent information could be disclosed. If it was less than that, and of course if you weren't approved, it wasn't to be shared publicly. That was a consequence of the subcommittee meeting. I can't recall the members at this point.
MR. STEELE: Maybe we can check on this. That's the only way to clarify it. Guideline 8 in the form that was developed by that subcommittee simply says that if the remuneration is $100 or more per day, a current resumé or c.v. of the applicant must be attached. Fine, that was my understanding. But that's a completely different thing from saying that if they're appointed and the remuneration is not $100 a day, then any c.v. that is attached will not be disclosed. Perhaps we could just ask the committee clerk to review the work of that subcommittee and see what they actually decided. When I read the confidentiality policy, I just thought it went further than it really ought to and further than had been agreed on in the past.
MR. CHAIRMAN: Darlene, we would ask if you could report back to the committee. Is there any further business? Motion for adjournment?
MR. TAYLOR: I move adjournment.
MR. CHAIRMAN: So moved.
[The committee adjourned at 9:35 a.m.]