CONTENTS
Wednesday 16 January 1991
Appointments Review Process
Continued in Camera
STANDING COMMITTEE ON GOVERNMENT AGENCIES
Chair: Runciman, Robert W. (Leeds-Grenville PC)
Vice-Chair: McLean, Allan K. (Simcoe East PC)
Bradley, James J. (St. Catharines L)
Frankford, Robert (Scarborough East NDP)
Grandmaître, Bernard (Ottawa East L)
Haslam, Karen (Perth NDP)
Hayes, Pat (Essex-Kent NDP)
McGuinty, Dalton (Ottawa South L)
Silipo, Tony (Dovercourt NDP)
Stockwell, Chris (Etobicoke West PC)
Waters, Daniel (Muskoka-Georgian Bay NDP)
Wisemam, Jim (Durham West NDP)
Substitution: Kwinter, Monte (Wilson Heights L) for Mr McGuinty
Clerk: Arnott, Douglas
Staff: Pond, David, Research Officer, Legislative Research Service
The committee met at 1004 in committee room 1.
APPOINTMENTS REVIEW PROCESS
Resuming consideration of the appointments review precess.
The Chair: I guess we have enough warm bodies. I will call the meeting to order. As you know, we do not have anything scheduled for this afternoon. It was suggested yesterday that we devote the morning to a review of the Macaulay report, which was a review of Ontario's regulatory agencies. Our researcher is going to take us through this. Hopefully, to assist us in the future we are going to have legal counsel who served with Mr Macaulay appearing before us, and we are also at some point going to have Mr Macaulay himself appearing before the committee. David, do you want to take it from here?
Mr Pond: I brought along two memos I prepared for the committee last year. The first one on the Macaulay report itself the members may have seen already, but I brought along another copy. I brought the second one for reasons which I hope will be made clear in a moment.
This is the Macaulay report. I believe all members were issued a copy. Mr Macaulay is right now a practising administrative law lawyer. He has had a long career in Ontario public affairs. He was a minister in the Frost and Robarts governments in the 1950s and 1960s. Then he served as chair of the Ontario Energy Board, a very distinguished chair. Then he went into private practice and has written the standard text on administrative law and procedure, which came out in the 1980s. Then he was commissioned by Mr Peterson in 1988 to exhaustively review the operation of agencies, boards and commissions in Ontario.
I think I will start by focusing on what Mr Macaulay had to say about the order-in-council appointments and the review of order-in-council appointments, because that is the subject the committee is directing its mind to in its current hearings. Then, if the committee desires, I can go on to talk about the rest of the Macaulay report. Not all of the Macaulay report, I should add, is relevant to this committee. He has a large section on the Ombudsman, for example, which is the concern of another committee of the Legislature.
In any case, Macaulay on appointments: It is safe to say, like the new provisional standing order, that he is in favour -- or was in favour, I suppose -- of a more open appointments process. I think he would approve of Ms Phillips's comments about the plans of the appointment secretariat to have a human resources component in the screening of applicants for positions. I do not think he has any problem with that.
However, beyond that generalization he does take a bit different approach to how order-in-council appointments to agencies, boards and commissions should be made and how they should be reviewed. All you have to do is skim his report and it becomes evident that because of his background Mr Macaulay has an unrivalled knowledge of how agencies in Ontario actually work. When he was a minister he drafted many of the statutes which to this day govern some of the major agencies in Ontario.
One of the points he comes back to over and over again in his report is that it is dangerous to make generalizations about how agencies in Ontario operate. I should add at this point that he does focus on the major regulatory agencies, as the chairman said at the outset. Every agency, according to Mr Macaulay, is a world unto itself to a large extent. He argues that it is really only the people on the inside of the agency -- the chair, the board members -- who can give an accurate view of how that agency operates. He argues that if we are going to have an improved, new appointments procedure, the plurality of agencies in Ontario and how they operate has to be taken into consideration.
I should add -- I do not mention it in the memo and it is important to understand this -- that there is a long debate in Canada, as elsewhere in the English-speaking world, about the role of the administrative law and administrative agencies. It goes back to the creation of the welfare state in the 1930s and the 1940s. It is a bit of a generalization, but it is what he adopts, so I will too.
There are basically two points of view about administrative agencies. The first view, which tends to be taken by lawyers, and certainly was taken by lawyers in the profession in the 1930s, 1940s and 1950s, is that agencies are potentially a threat to individual rights and therefore have to be carefully controlled by the courts under judicial review; and therefore, whenever possible, agencies, when they hold hearings or adjudicate matters which affect individual rights, should operate like a court. The court-like model is favoured by many lawyers.
The opposing view within the administrative law and policy world is that agencies are unique. They are not courts, they are not the Legislature, they are not the cabinet. They were created for specific functions. They combine elements of the other three branches of government, but they are unique. It is possible for agencies to protect individual rights and still get the job done. Procedures which agencies should follow should be tailored to the specific agency in question, because every agency is different, given its mandate and the policy area in which it operates. These are the two polar points in administrative law and practice.
I might add that in this debate in the English-speaking world, Canada has had some very distinguished contributors, people like Bora Laskin, for example, who is world famous for his views on administrative law and policy.
Macaulay very definitely takes the second point of view. He is pro agency. He thinks agencies are necessary, inevitable in modern society. He thinks they should be allowed to do their job. He does not think agencies should be turned into miniature courts, and most of his recommendations are made with that in mind.
Turning specifically to the business of appointments, as I mentioned, he feels that because every agency is different to a certain extent, the appointments procedure has to take that into consideration. I give you some examples. If an agency is dealing with a very highly technical area of policy, and its hearings, if it holds hearings, are going to be dominated by the so-called experts, as opposed to an agency which has a more general mandate and before whom members of the public are likely to appear, Macaulay argues that the appointments procedure for these types of agencies is going to have to be different. If you are looking for appointees who have a very specialized expertise, a very technical background, you are going to want a different appointments procedure, in contrast to an agency where you are going to be looking for people who are more representative of the community.
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He points out, and he is in a position to say this, that it is difficult to get good people for a lot of reasons. You can have the best appointments procedure in the world, the most publicized appointments procedure in the world; it does not necessarily follow you are going to get the best people. So he argues that you have to tailor the appointments procedure to the agency you are trying to attract people to.
Another example he points out which affects the way people apply for jobs is whether the position on the agency is part-time or full-time. Obviously, a lot of people in our society who might be desirable agency members cannot afford to take a part-time position. They have a full-time job; they cannot add the extra workload. Conversely, many people who would be interested in a full-time position, in their own minds at least, cannot leave their job without losing their career, so to speak. As Ms Phillips pointed out yesterday, most -- not all, but most -- appointments now to agencies in Ontario are for three years with one reappointment. Macaulay points out that many professionals cannot afford, in their own lives, to take three years out of their career to serve on an agency when there is no guarantee they will get a reappointment and when, in any case, it is not a career prospect for them. So Macaulay argues again that whether the appointment is part-time or full-time should affect the appointments procedure used by the secretariat in order to pull in people who can take on a part-time responsibility or to pull in people who are in a position to offer their services full-time.
He points out that many agencies hold hearings and that, as I mentioned earlier, some hearings are highly complex matters -- for example, before the Ontario Energy Board -- while other hearings are not. We had an agency in here last year, the Ontario Custody Review Board. It dealt with the problems young offenders have in Ontario. Its board was made up of community representatives who had some insight into the problems of young people. The point Macaulay was making was that, given these different types of hearings an agency would hold, once again you would want to tailor the appointments procedure to pull in different people. They would be more comfortable, given their background, with a highly specialized hearing or more comfortable, as the case may be, with a more publicly oriented hearing.
He argued that generalizations about what would or would not be a good appointments procedure failed to take into consideration the different nature of different agencies in Ontario. He felt that if an appointments procedure was set up which did not take this into account, you are not likely to get the best people.
I can give you other examples. One that I think should be mentioned, which he points out -- this is his language, not mine. It is kind of a motherhood thing now that the appointments procedure to agencies should be as open and democratic as possible. However, he points out that for many agencies which deal with specialized subject matter, the statutes that govern them require that specific representatives from specific interest groups be appointed to that agency. The example he uses is of an agricultural agency where a farmer had to be appointed to the board. He argues that in that circumstance, and there are a lot of agencies like that, having an "open" appointments process really missed the point entirely, because it was natural for the government of the day, when it was searching for an appointment to that kind of agency, to go to the specific community involved, in this case the agricultural community. He said this is something that has to be taken into consideration when you are putting together an appointments procedure or when you are evaluating the government's appointments procedure, which is what this committee does.
Another matter he was very big on is that he felt it is often overlooked that when a new appointment is made to a board the existing members of that board have to work with the new person. As the focus in appointments procedures tends to be on the new person, not on how the existing people are going to work with the new person, he recommends that before a candidate is finally chosen by cabinet for an appointment he or she is sent to talk to the chair of the agency to which that person will be going, for two reasons: first, so the candidate will find out what is actually involved in sitting on that agency.
Again, Macaulay argues that because every agency is different, candidates, no matter how qualified from the outside world, if that is a good phrase, may not always really understand what is involved with sitting on that agency in terms of the issues, the workload, the personalities. This is something Macaulay emphasizes, that one has to take into consideration the personalities on the board. They have to mesh or the agency is not going to work. So he felt that if the appointee goes off to see the chair, the chair would be able to acclimatize the candidate as to the real nature of the job, which may change the candidate's mind, but also it would enable the chair to get a feel for the new person. Macaulay recommends that before an appointment is made the cabinet or perhaps the appointments secretariat should ensure that the chair's opinion of that candidate is heard by the cabinet. He does not necessarily have to have a veto, he is not in favour of a veto power for the existing chair of an agency, but he does feel that the chair of an agency has the right to have his or her opinion expressed to cabinet before the appointment is made.
Turning to his recommendations, he recommends that this standard rule, or what is becoming a standard rule in Ontario, that appointments should be for a three-year duration, should be changed. He feels there are some agencies which operate in a highly specialized area of policy where it would be desirable that if you do have an outstanding board member they should be allowed to stay on. I think he feels it is a waste to have these people's positions terminated after three years or three years plus one reappointment if they are doing a very good job and are willing to stay.
The second reason he makes that recommendation is that he feels many qualified people in the community are discouraged from applying now because, as I mentioned earlier, they cannot look upon an appointment as a career option because of the fact that it is going to be a short-term appointment. He recommends that it may very well be that the government could attract highly qualified professionals to agencies if the applicants could see this as a career choice, much as when a lawyer gets appointed to the courts he or she is there for ever, until they retire.
As I mentioned earlier, he recommends that it be a requirement that the chair of the agency to which the appointee is going gets the chance to meet the appointee. That should be a condition of the appointment. He argues that this body he would like to see in Ontario, called the council of administrative agencies -- this is why I brought along the second memo -- should have a role in the appointments procedure. Very briefly, Australia, Britain and the United States have advisory bodies -- they are usually known as administrative councils or, in the United States, administrative conferences -- which are made up of laypeople and experts in the field of administrative law and advise the Legislature and the cabinet about the whole operation of agencies, including the training of staff, the training of new agency board members and advising the cabinets or, in the case of the United States, the President on how the appointments procedure could be cleaned up. He recommends that Ontario adopt such a body. They do work well in other jurisdictions, there is no doubt about that.
This administrative council, as he calls it, would work very closely with this committee on an ongoing review of the appointments procedure, an ongoing review of staff and board member training. He is very big on training. He feels that people appointed to agencies, while they may have all the qualifications in the world when they are appointed, do not necessarily have all the skills they are going to need to be a good agency member. An example he gives is that there should be training on how to hold a hearing. A lot of people, he feels, who get appointed to agencies may be quite expert but they do not necessarily know how to handle deputations from the public, how to chair a meeting, how to interact with members of the public. He feels that many agency board members are not taught how to write a decision; agencies that hold hearings have to release decisions. He feels this a talent, a skill, and it is all too often taken for granted by cabinet when it makes appointments. He feels there should be training in this area.
He feels that agency board members, once they are appointed, tend to get set in their ways in terms of making decisions. He thinks there should be ongoing training in new administrative law decision-making procedures as they crop up. One of his favourite examples, and Martin Campbell appeared before the standing committee on administration of justice on this last year, is the whole area of alterative dispute resolution mechanisms. This is not new, but an increasingly popular method of solving disputes in modern society, which is very big in some administrative agencies in the United States and is creeping up into Canada. He feels this is a new technique which could be of valid use here, and agency board members who are, as it were, entrenched in their positions should be made aware of these new techniques.
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To finish off this section, for the purposes of this committee there are two aspects of the report that would be valuable to think about, and also in terms of Mr Campbell's testimony and Mr Macaulay's testimony, if he does appear before you. One is his feelings about, as I mentioned, the individual nature of agencies and how the appointments procedure and how this committee reviews prospective appointments to agencies must take into consideration the specific identity of each agency, that every agency is different. There are very few safe generalizations to be made about desirable appointees.
I might add, on that point, that if Mr Macaulay does show up for a hearing, members might want to ask him questions specifically about our two agencies that we are going to be reviewing, the Ontario Municipal Board and the Liquor Licence Board of Ontario, because he is intimately familiar with the former in his practice and he has written about both in this report. There are very few agencies in Ontario he does not have an opinion about.
The second aspect of this section of his report which I think is valuable is his recommendations and I have outlined some of them. I think members might want to consider them when they are drafting the report on proposed revisions to the draft standing order, as the committee is required to do before May.
I think I will stop there. That is what he has to say about appointments, which is what we are dealing with now. I am happy to go on and talk about the rest of his report if you would like, or take questions.
Mr McLean: I have a question with regard to what you said, that it works well in other jurisdictions, Mr Macaulay said. What other jurisdictions were you referring to?
Mr Pond: Washington, DC; Great Britain, where the council is known as a council on tribunals; and at the federal level in Australia. I should add that this proposed council -- this is Macaulay's view -- would not be a new layer of bureaucracy; it would be a part-time advisory body. Perhaps the chair would be full-time. It varies from jurisdiction to jurisdiction. It would work very closely with this committee or its equivalent in the other jurisdictions. It would not be an agency or an extension of the executive. It would be separate and independent and work directly with the Legislature.
Mr McLean: Under the direction of the government?
Mr Pond: No, under the direction of the chair of the council who, once he or she is appointed, is there with secure tenure.
Mr Silipo: If I have understood what Mr Macaulay is indicating, would that council then in effect do some of the kinds of reviews that otherwise might fall to this committee? Is part of the reason for the existence of these bodies just the stark reality that a committee like this cannot really review properly --
Mr Pond: I think you would see -- and this is how it works elsewhere -- that council would prepare or provide a lot of the raw material this committee would use. I do not think there is any doubt. He would see it as a support to the Legislature, to this legislative committee.
Martin Campbell will say this. He has said it before. He feels that in an ideal world -- again, we are talking about an ideal world -- committees would have a lot more time and energy and resources to examine agencies. The ideal everybody has is congressional committees in the United States which, as we all know, have dozens and dozens of staff members and spend months doing these kinds of reviews.
Probably in a parliamentary system that is not possible. The way to get around that is to have this outside body preparing some of the raw material for use by a committee.
I will give you an example. The draft standing order under which this committee operates in terms of appointments does not allow for independent witnesses. The committee cannot summon independent witnesses to express their views on particular government appointees.
One of the things this council could do would be to provide that independent expert advice, again, about how a particular agency operates and about prospective appointees.
Mr Waters: At one point you said something about the fact that good board members should be allowed to stay beyond their normal --
Mr Pond: For certain agencies.
Mr Waters: Who would determine who is a good board member? What might be a good board member to one person is not necessarily that to the committee.
Mr Pond: Fair enough. In fact, now that you mention it, Mr Macaulay had some very shrewd remarks, and again I am speaking from personal experience. In fact, you can ask him this. He would probably tell you right out whom he has in mind. He talks about how, with the best will in the world, people who look really good when they are first appointed can turn into terrible agency members for a lot of reasons, some of which are beyond their control. They have marital problems or financial problems that can affect their performance.
He is a believer in the Westminster system, whereby the cabinet makes the final decision. I do not think there is any doubt about that. He does feel, though -- and I mentioned this earlier -- that when appointments are made or remade, as it were, the chairs of agencies are not often consulted sufficiently. He argues that quite often these appointments are made by the cabinet without giving the opportunity to the existing board members to have their say about whether this person would be a good appointee, whether this particular mix of skills and talent would be a good mix for the agency.
Mr Bradley: What you will find as well, he interjects, is that people will get in these positions and then blackmail the government for more money and say, "Well, I am going to leave and go somewhere else if you do not give me more money or some other perks." These things actually do happen on a number of occasions.
The Chair: It happens in the private sector too.
Mr Bradley: Yes, the private sector is the same as the public sector; you are faced with that all the time, although in a recessionary period they tend to be a little more reasonable than they are in non-recessionary periods when the private sector is bidding for their services.
Mr Waters: Yes, but this statement that was made, that Mr Macaulay said that certain members should be allowed to stay on beyond their full term and the one after, basically for life, who determines who is that good a board member? That is the problem.
Mr Pond: That is the problem, but as I mentioned, in the final analysis I do not think he would say that decision has to remain with cabinet. He does not address this specifically, because this came out in 1989 before the draft order for this committee was written, but I think he would tell you that he does not believe that this committee should have a veto power over appointees, that in the final analysis the decision has to stay with cabinet because it is responsible for the operation of the executive branch of government.
I think Mr Bradley's point, you could put that to Mr Macaulay if he does appear. He is quite a frank fellow. As I say, he is one of the few people around who are in a position, and who have had firsthand experience of the administrative world in Ontario, but who are no longer within the government, that they can say what they think, essentially.
Mr McLean: What time is he coming this morning?
The Chair: He is not coming this morning. We are still trying to arrange a date with him.
Mr Silipo: Yes. I assume, first of all, that this suggestion or this recommendation that he made about setting up this council in fact has not really been discussed at all by our predecessor committee, or has it?
Mr Pond: No.
Mr Silipo: So presumably it is something that we may want to get into at some point and take a look at.
The Chair: I am not sure what the previous government or former executive council members are aware of, whether there was any discussion of this report or not. I guess our previous committee was considering getting into a review of the Macaulay report and tabling a report in the House in respect to that, but nothing has happened. This is indeed a significant document and certainly someone should be taking a look at the recommendations, but whether or not we are going to have the time to do it is another thing, with our mandate being broadened now. It is perhaps a difficult chore to find adequate time to do it.
Mr Silipo: There are two other areas where I wanted to both make some comments and really ask a question. I think Mr Pond said that in terms of the sort of two approaches or two views to the function of administrative tribunals, that Mr Macaulay came down sort of clearly on the one side of less -- not less procedure, that would not be correct -- but sort of less awkward procedure, if I understood what you said.
Does he talk at all, though, about how you sort of balance that need, on the one hand to have as simple a process as possible in any of these tribunals or commissions and, on the other hand, to make sure that there are adequate safeguards for individual rights? Where is the balancing line as he sees it between those two interests?
Mr Pond: That is the big question. He is a critic of the Statutory Powers Procedure Act. That was a statute enacted by the Legislature in 1971, I believe, initially in the wake of the McRuer royal commission in the 1960s. Judge McRuer was appointed, I believe, by the Robarts government in the 1960s. It was a precursor to this. Judge McRuer was definitely of the first model, a very distinguished judge. He felt agencies had to be fettered. They were a threat to individual rights and in all fairness, in his day there was very little legislative attention paid to the operation of agencies and he probably had a good point.
Out of his recommendations came a number of statutes. The Statutory Powers Procedure Act dictates the minimum floor of procedures all agencies in Ontario have to follow when they are making decisions.
He argues that -- again, this follows from his general approach -- having this standard uniform model for all agencies is a mistake and that procedures for protecting individual rights should be tailored to the specific agency. Now the question is, who does the tailoring? Again, this would be one of the things the council, this proposed council would look at, tailoring procedures to particular agencies. He feels that if there were a more extensive training program for agency board members, and I mentioned this already --
Again, in the final analysis the quality of an agency's decisions is influenced or perhaps determined by the quality of the people making the decisions. He feels if there was a more extensive training program, an ongoing training program, as there now is for judges, for example, in Canada, for agency board members, this bogeyman of a threat to individual rights, as he puts it, would be diminished because you would have board members who were continually being sensitized to the rights of citizens before them and new human rights issues which may not have been perceived as human rights issues when they were first appointed.
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I think the two-part answer is that this would be something the council of the administrative agencies would look at and it would be something that would be dealt with by a more extensive training program for new and existing agency board members.
To get back to our specific mandate, I think he would argue that this should be one of the conditions of appointment, that the new board member would go through this training process quite extensively.
As I mentioned, for the federal judiciary, and I believe also for the provincial judiciary, this is now mandatory, these ongoing training programs to sensitize judges to the changing realities of society. There is nothing novel about this, this is the sort of thing which other jurisdictions are continually experimenting with.
Mr Silipo: That was actually my other question on the earlier point also, whether any of the other provinces have in fact set up anything like that.
Mr Pond: There is a Quebec version of this and it has gone much farther than Ontario has in terms of training and providing proper resources to administrative tribunals and sensitizing tribunal members to the changing cultural reality, if you like, to use a cliché. He comments on the "Ouellette Report" in this report. Unfortunately -- I checked -- there is no English version of it. It is quite an extensive report, much like this one is. Unfortunately, there is only a French version. It has not been translated.
The United States has gone a long way. The Administrative Conference of the United States, which is the equivalent to the proposed council, a federal body in Washington, is a very sophisticated operation and has had a great deal of success, improving the quality of decision-making by agencies and liaising, if that is the word, with Congress in the oversight function.
Mr Silipo: The other area of the Macaulay report that I certainly found fairly interesting was the whole series of suggestions around how you could look at other ways of reviewing groups of agencies. Are you going to talk about that a little bit?
Mr Pond: By this committee?
Mr Silipo: Yes, in terms of looking at issues or particular interests and grouping a number of agencies and asking and doing a review on that basis as opposed to reviewing all aspects of one particular agency's work. It seems to me that that is an area that I would like to see us take a closer look at. It may be another way to balance the way in which we can do our work more effectively.
Mr Pond: I think Mr Campbell -- the clerk can correct me if I am wrong -- this is the sort of thing he may be talking about. He certainly did the last time he was here.
Macaulay argues that, as you just said, it is more efficient for this committee, given its limited time -- there are 580 agencies -- instead of taking three or six and trying to send a signal to all the other ones which were not reviewed, reviewing just a small number, taking one aspect of the job of agencies that many agencies have to do looking at that one aspect. Now, the two examples he uses are licensing.
Many agencies in Ontario are involved either in issuing licences or hearing appeals of licences which have been issued by other bodies. The Commercial Registration Appeal Tribunal is a classic example. One of the things he suggests is that, for example, this committee could look at licensing, how agencies handle that business or how agencies handle the review or the appeals of licensing decisions made by other bodies.
The environment. Many agencies in Ontario in an increasing number are given responsibilities for reviewing decisions which have something to do with the environment: environmental impact, land use planning with environmental impact and so on. It is an increasing preoccupation necessarily of the government.
He argues that -- again, it gets back to his point about the individual nature of agencies -- the problem is that these type of agencies and the assignment of this kind of function to existing agencies tends to grow topsy-turvy. This year if the Legislature passes a statute which requires the Ontario Municipal Board to hear a class of decisions which have an environmental impact, next year the Legislature passes a law requiring joint boards to be created out of other agencies to hear environmental matters and so on. One of his examples is that the committee could look at how agencies in Ontario handle environmental issues per se with a view to rationalizing or improving their operations. He has very specific recommendations about that, incidentally.
Public utilities -- again, that function could be looked at. The example Mr Campbell used when he was here before was individual rights. All agencies to one degree or another affect individual rights. How could that be focused on specifically across the board? There are any number of examples.
Alternative dispute resolution mechanisms. This is something Mr Campbell is a bit of an expert on, another example.
One of the reasons why Macaulay belongs to the school he does is that he argues, when agencies become judicialized, when they become more and more court-like, partially because of judicial decisions -- that is something I have not mentioned; quite often judicial decisions will require agencies to become more and more court-like in order to survive the appeal process -- he argues that, as agencies become more court-like, as it were, they become more inaccessible to ordinary people. You have to get a lawyer to appear before them. That costs money.
Mr Bradley: That is exactly what is happening.
Mr Pond: It becomes more complicated and therefore more intimidating. Again, this is an aspect of most agencies that the committee could look at as opposed to looking at specific agencies. This is a problem the OMB has, for example, which we are hearing from next week. They may not perceive that to be a problem, but it is a problem.
Then there is intervenor funding as another example. That is an increasingly popular idea. However, in Ontario right now only a limited number of agencies are accessible through the means of intervenor funding.
Mr Grandmaître: It should be extended.
Mr Pond: That would be a notion or concept which would apply to a lot of agencies the committee could look at as opposed to looking at a particular agency.
Mr Bradley: That observation can be confirmed by looking at virtually every agency, now, of government, which those who have been around for years tell me is a significant change. I had responsibility for the Ontario Environmental Assessment Board, for instance. The number of people who now show up at the Environmental Assessment Board as concerned citizens is virtually zero. They must now come with lawyers and experts to make decisions. There are many who will argue there are going to be better decisions as a result of that, but it is exactly what Mr Pond has said about the fact that the average person now feels helpless going before one of these, either the Ontario Municipal Board, but more so, probably, the Environmental Assessment Board because without the battery of lawyers and experts people feel their arguments will not be accepted.
The second, of course, is the concern about judicial review at all times, that once a decision is made, will it go to court, will the court overturn it, which is yet another story. I must confess a great concern about the power of the courts increasing. A lot of people think that is a good idea but essentially Pierre Trudeau's comments about MPs and when they start to get 10 feet from Parliament Hill can apply to a lot of legislators these days, that in fact the power of individually elected legislators is diminishing; the power of the courts and the individual agencies, boards and commissions is in fact increasing. Again, there are people who think that is a great idea. I do not happen to be one of those people, because I think elected people should be making those decisions.
I guess part of that goes back to the constitutional agreement, the Charter of Rights being established and so on, but what members who are sitting on the other side in the committee will discover if they make their way into the so-called executive council -- I do not know why we call that the cabinet -- is that so many of their decisions, of their government's decisions, are going to be influenced by (a) court decisions, (b) decisions of agencies, boards and commissions and (c) anticipated decisions of agencies, boards and commissions and anticipated decisions of courts so that, in other words, to beat the court to a ruling so it is only going to cost them $200 million instead of $400 million. They will take a halfway measure and buy off the people who are about to be successful in their charter challenge if their Attorney General suggests that.
So this is going to be indeed interesting work, to see if it is advisable to reverse this trend in the agencies or if it is not advisable, but I can certainly assure you that average citizens, if they once felt they had access to these, today do not feel they have access to them.
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Mr Kwinter: The other problem, just to follow up on that, is the structure of the agencies. Mr Pond just mentioned two of them, the Liquor Licence Board of Ontario and CRAT, the Commercial Registration Appeal Tribunal. What happens is that usually people who are appointed to these agencies are generally appointed from the general population. There is no secret that when you become a minister, when you become the government, you are inundated by people who feel that somehow or other they want to make a contribution to the process and would welcome an appointment. Those of us who have been ministers know that this is one of the most common sort of representations you have made to you by people who are your supporters, or are perceived to be your supporters.
They get appointed, for whatever reason. Unfortunately, they may be good people in their own right, but as has been mentioned, they do not have the background as these become more and more sophisticated. For example, you will get somebody who has had his licence revoked as a real estate broker or as a mortgage broker who feels that that particular revocation was unfair. He engages a lawyer, appears before CRAT, and the people who are sitting on this board may not have the competence to really deal with the legalities of it. If you fill the board up with people who are that competent, then you tilt it the other way and you get people saying: "It isn't representative of the general population. I should be there."
It is the same thing with the liquor licence board. When I was the Minister of Consumer and Commercial Relations, the two boards that seemed to be the most popular, in the way that people wanted to have appointments to them, were the liquor licence board and the Ontario Film Review Board. For whatever reason, there was a perception that these two boards were great boards to be on.
What happens -- there was no special expertise required -- is that people got appointed, but there are problems. Just to talk about those two, there is exactly that problem, that someone is charged with an offence under the Liquor Licence Act, comes before the board -- it is a licensing problem -- brings a lawyer and these people who are good and well-meaning but do not have the expertise make a decision. It impacts negatively or positively on the particular person who appears.
We have a very interesting situation developing right now with the film review board. I used to say the only qualification that you have is that you be able to stay awake to watch the films. That was really it, because it is really a board that is made up of members of the public who decide what is the level of acceptance of films by the general public. What happens is that the longer you sit, the more desensitized you get to the films and what you might have thought was horrible the first day is pretty mild the seventh month. Not only that, you have a situation where because of this desensitization that board is making decisions now where the courts are finding that the films are obscene even though the film review board has passed them. That is something that is going to come up and we as legislators are going to have to deal with it.
You have that problem and I think what we have to do -- I have to apologize because I am not really on this committee; I am just substituting. The problem that has to be addressed is twofold: One, what is the role of the agency, board or commission? I do not know whether it is the mandate of this particular committee to look at that and decide whether they should be modified, changed or abolished. Two, how do you appoint people to it?
If I could just give you a personal experience. I have had the distinction of being appointed to a commission. I was appointed by the federal government as a member of the Toronto Harbour Commission. When I was appointed, it was a five-man commission made up of three city representatives, a federal representative and a representative of the board of trade made by the federal government.
There was no question that when I was appointed I was perceived by my fellow commissioners as being the government man on that board. Whenever a question of government policy came up I was looked to and they would say, "What do you think the government thinks about this?" I had not the faintest idea. I had nothing to do with the government. I just happened to be appointed. But the perception was that because I was appointed by the federal government, I was its man, I had the ear of the minister, I knew exactly what was going on and I was there to make sure that this board, this actual commission, toed the party line.
As it turned out, I very quickly became the chairman of that commission and after three years --
Mr Grandmaître: Because of your connections.
Mr Kwinter: No.
Mr Silipo: Because you are the government man.
Mr Kwinter: The interesting thing about it is that after three years, when I would normally have come up for reappointment, I guess I happened to have been a little ahead of my time and I objected to what Harbourfront was doing to the waterfront, which was a government proposal, and as a result I was summarily removed as a member of that commission.
So not only was I not the government's man, but the government saw fit to take me off the commission because I was opposing what Harbourfront was doing. That was 11 years ago, and now they are just coming to terms and deciding that what Harbourfront was doing was not right. That is the problem you have.
You have a problem when you appoint people. Again, I am not trying to be political. You appoint people to the SkyDome board. You appoint Bob White and Bruce Kidd. They are immediately perceived as being representatives of the government, people who have direct access to the government, direct access to the Premier, and are there to do the government's will. The other members of that board see them in that light. It does not matter what they say. You cannot change that. That is the light in which they are seen.
I am not saying that is necessarily bad or that is necessarily good. I am just commenting that this is the way it works. So what you have to decide is, is this something the way it should be, and that in fact yes, members of the boards, agencies and commissions should reflect the government's position because that is why we put them there -- if that is the case, that is fine -- or no, they should not do that; they should be independent. I do not say that you penalize your friends, but that the people who are appointed -- it could be that they happen to support your particular point of view as a government -- are appointed because of their competence and their ability to add something to that board.
To me, that of course is the whole basis on which this has to be addressed, in that context. How do you do that? How do you set up come kind of a system where you can evaluate that? Again, as I say, you do not penalize somebody because he happens to support one particular political party over another, but all things being equal, is this person able to function? I think that is the problem because that is one of the major issues that people -- when I say "people," members of government -- have to deal with, how do you staff this incredible number of boards, agencies and commissions? I do not know what the numbers are, but there are thousands.
Usually, unless they are really high profile, they are just meaningless names that have been recommended by some guy who happens to be the parliamentary assistant to the minister. It is his campaign manager or it is some guy who was his sign chairman, and he says, "I've got to show this guy that I appreciate him and put him in there."
That is one of the problems you have. I do not know whether you can change it because that is the system and it really takes a fundamental change in the system.
Ms Haslam: Was that not part of the comments yesterday, though, from the witnesses, that we were to look at whether the qualifications and the résumé of the people before this committee were adequate for them to handle the job? That is really what we want to look at -- are they adequate résumés, are they of adequate experience to handle the job? -- not what political party -- yes if they are members of a political party -- but are they capable of handling the job we are asking them to do? I think that was a very valid point that was brought up by the witnesses yesterday. That is really what you are looking at and that is what your questions have to show.
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The Chair: The only weakness in that, I suppose, is the fact that the amount of time available for us to review an appointee is quite limited. I guess we can only put forward a ballpark guess at this stage that maybe we will be able to look at perhaps 50 or 60 appointees a year, not an awful lot of appointees when you are looking at over 5,000 appointments in the province to ABCs.
From an opposition point of view, I would suspect that the opposition parties would want to be primarily dealing with rather high-profile appointments for a variety of reasons, and I am sure there will be a mix there as well, but perhaps focusing on the more prominent figures and roles that are available in the provincial government.
I guess we are just simply going to have to go through this and over the next period of time determine how effective this is going to be. I guess we are all hoping that indeed it is going to be a challenge. Having the experience of someone like Mr Kwinter and Mr Bradley is very helpful for all of us, I know.
Mr Wiseman: My question to Mr Pond is, does Macaulay say anything about the 5,000 -- we talked about this yesterday -- appointees, roughly, and they range all the way from harbourmaster to whatever, to the chairmen of boards, does he say anything at all about who should be reviewed and at which point it would be prudent not to spend a lot of time at it? What does he comment about that?
Mr Pond: He says that this committee or whatever title it has should do this and nothing else, that the committee that reviews order-in-council appointments should do that and nothing else. It should not try to combine that with the other functions this committee has had in the past. It should do that and nothing else.
I think also he would expect this proposed council on administrative agencies to perhaps indicate to the committee or even make recommendations about which appointees or which agencies to which there will be appointees -- that is probably a better way of putting it -- it would be desirable to expose to sunlight and which ones would not be.
There is this insurmountable problem of numbers. The other answer is that I think the argument is that ideally this process works well. It sends a message to the cabinet -- this is certainly how it has worked, more or less, with the United States Senate, that it sends a message to the cabinet -- regardless of what party is in power, that you had better not make any silly appointments because you are going to get caught. That does tend to happen.
In America, for example, presidents who do make appointments which are highly controversial tend to be presidents who otherwise ignore Congress. The classic example is Richard Nixon -- I hope nobody here is a big fan of Richard Nixon -- who tried to appoint to the US Supreme Court two chaps in the late 1960s. These were lawyers who wanted to be judges. One had a criminal record. The other one was a blatant racist. He was stopped because of the power of the US Senate to "advise and consent," the famous words in the US Constitution about appointees.
It sends a message to the cabinet about future appointees who may not come before the committee but who the committee could choose at some future date.
Mr Wiseman: These examples from the United States raise some interesting points. For example, Kennedy in the United States has a personal staff of well over 120 people working for him. He has people on that staff who are probably more expert in any given field than he is. There are other examples where senators have come for committee hearings and had their staff person sitting right there whispering the questions in their ear as they went along. In some cases, the expertise of these staff people has just completely overshadowed the member himself. They have taken control of the committee hearings and been able to pursue lines of questioning that the senator or the member himself did not have any expertise in.
I do not have a staff even anywhere close to that size and neither does anybody else here. How could we even possibly move to that kind of a system without expanding the bureaucracy an enormous amount and adding huge amounts of cost?
Mr Pond: First of all, it is probably an insurmountable problem in a Westminster parliamentary system. The US is very different. It is built right into the US Constitution that senators are independent power centres. They are barons. The president is the king and the senators are the barons. The king cannot do anything without talking to the barons first. That is not how the parliamentary system works and it never will work that way.
But I think his solution -- the method they have adopted in Britain and Australia, which are parliamentary systems as well -- is that this is something you could give to this council on administrative agencies, this independent advisory group. This would be in part its responsibility, to assist members in making these evaluations. It is more cost effective and it does not disturb the status or the position of members in the system. It is a way of circumventing this problem, which they do not have in the United States because of the separation of powers.
Yes, you are right. There is inevitably this imbalance of information between members and the executive. There is no doubt about that.
Mr Bradley: This gets back indirectly to some of the questions Mr Wiseman has had and some of the comments of Mr Macaulay in his report, the fact that this committee does not have the right to review reappointments, only to review appointments. That is what I understood from yesterday. I was told we did not have the right to review reappointments.
There is an opportunity if you are reviewing reappointments to determine whether the person is in fact doing a reasonable job or not. Presumably this committee would not be interested in reviewing a reappointment of someone who appears to be doing a good job and there is a general consensus; but if someone were doing a job that a lot of people in the public felt was a bad job in a position, we should be in that position to review it. I think Macaulay points to that.
The other situation that exists as well is, the members of a new government coming in, I would think, would want the power to review the reappointment of people who a previous government has appointed. In some cases, you are seeing people being reappointed who were appointed by a Conservative government, subsequently reappointed by a Liberal government, subsequently being reappointed by an NDP government. It may well be that members of the committee from the government party might be interested in seeing whether it is advisable to have those people continue. Then as we go down the line the committee would be interested in the reappointments that this government makes of the people it has selected for the first time.
I really think some of these people get in a position and they are very hard to dislodge. They make friends in the right places, often with client groups. I have watched people from a previous government being reappointed by a Liberal government where I shook my head at the fact that they could be reappointed, but they always had the group they deal with saying, "Oh, he is a good guy" or "She is a good woman for this position." Somehow it would intimidate the cabinet into reappointing somebody and the cabinet would hold its collective nose and reappoint the person, either because there was going to be public embarrassment, the client groups were going to be angry or it looks good politically to do it. This committee, which I am told is non-partisan, would be able to approach that in an entirely different light.
Mr Wiseman: You would know that more than anybody else, I think.
Mr Bradley: Being non-partisan myself, I know we could approach it in that way. But I really think those reappointments are going to be important and, as I say, as important for new members of the governing party as they are for members of the opposition party. In fact, it may be at long last a chance for some of us now sitting in the opposition, let me put this diplomatically, to review those people without the intimidating factors there. I think that is as much as I should say on that.
The Chair: David, did you want to spend some time with any other aspects of the report?
Mr Pond: As it affects the committee right now, I do not think there is anything I can really add that would be of immediate use to the members. If they like, the committee could look at what I have said today and perhaps some of the remarks the members have made in terms of possible recommendations in terms of reviewing the provisional standing order. I could put that on paper so that the members will have something in front of them when they interview Mr Macaulay, if he does show up.
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Mr Silipo: The only hesitation is, I am sure that all of us are going to, at the end of the process, come up with a number of things we will probably want to recommend be changed in the process, but it might be a bit premature to start getting too far along those lines as that until we have actually gone at least some way through the process. I think Mr Pond's material to us is just for us to have and maybe just think about and sift through as we go through the process. I think that is fine, but I think I would be a bit remiss if we were to start to get into those issues around what changes we might recommend to the process without our having even gone through it.
Mr Frankford: Could I ask some more general questions about the creation of new agencies or the abolition or amalgamation of existing ones? Is this something which happens all the time, or is the number that exists right now cast in stone, or what would one anticipate? Presumably if new ones come along, that might raise some interesting things, since one would be reviewing, presumably, a complete slate of appointments.
Mr Pond: The creation and, I do not know the right word, destruction or demise of agencies is governed by the Management Board of Cabinet Guidelines and Directives, which are very specific about how the cabinet can, I should not say recommend to the Legislature, but introduce the creation of a new agency. Nowadays it is a very stringent process.
As to the demise of agencies, one way is through the sunset provisions. I think I have submitted a memo to this committee on that last year. There is a sunset provision in the Guidelines, and our witnesses from the Management Board of Cabinet talked about that, for periodically reviewing advisory and most operational agencies as to whether they are still doing a good job. It is safe to say that agencies do not die on the vine very often. They usually just fade away. There are many boards and agencies which do not meet very often, but officially they may still exist on paper; there is no doubt about that. Maybe some of the former government members might have something to add to that.
Mr Kwinter: What happens is, there are agencies out there that have outlived their usefulness, only because the activity that they have been set up for has changed so dramatically, but there is always the feeling out there, I assume, that somewhere along the line something may come up that has to be referred to that agency. As far as the creation of new agencies is concerned, that is really something that is in the hands of the government and, again, circumstance dictates that. I would think that given the interest in the environment, things of that kind, there is a possibility that there will be new agencies set up of a kind, and as different things happen they may give cause and need for an agency. That is a government decision and once that decision is made, then they have to be manned and womaned and then I assume it is this committee's role to deal with it.
Mr Frankford: One thing which I think will come up is, if we are going to look at district health councils, that is something where there is not uniform coverage of the province. One might well take note that there are some areas without a district health council.
Mr Grandmaître: Let's assume that we are dealing with 5,000 agencies, boards and commissions. In the last 10 years, how many of these ABCs have been reviewed?
Mr Pond: By this committee?
Mr Grandmaître: Yes.
Mr Pond: We can find that out really quickly by just checking the appendix of the 17th report.
Mr Grandmaître: What is your wild guess -- 40%, 5O%, 60%?
Mr Pond: Let Mr McLean do that. It is three to six per year, is it not, more or less?
Mr McLean: It could be up to 10 if you do six in the spring and six in the fall or the summer. So it is less than 10 a year.
Mr Grandmaître: That is my point, less than 10 a year, and it is being recommended that these ABCs should be reviewed periodically.
The Chair: Every four years.
Mr Grandmaître: Every four years. At the rate we are going now, this committee will be sitting 25 years from now. We have to find a better way. I know that they are responsible to provide us with a report every year. I think we have to be better equipped -- if not this committee, another committee -- to be on top of these reviews and eliminate, possibly, some agencies or boards.
I think that is the reason why these agencies become non-functional, if you want to use that term, after 5, 6 or 10 years, because their mandates have changed. We have no way to change that mandate, so they continue to do the same old things they should not be doing in 1990. Maybe it applied, let us say, the golden rule in 1980. We have to find a better mechanism to be on top of these reviews.
I do not have the magic solution, but I think that is one of the reasons why these agencies, boards or commissions have lost respect in the eyes of the public; you know, just like the Ontario Municipal Board. I will be very pleased to tackle the OMB because I have been fighting with the OMB for 20 years. You know, some people on the OMB, and I am not being specific, are just like the Senate, or just like fish after three days -- they stink.
I think we have to find a better way to be on top of these reviews and maybe we should ask Mr Macaulay what he thinks about our record as far as reviewing is concerned.
The Chair: I agree. I think the concern is where this committee is going to find the time now. We are simply perhaps as a committee going to have to make the decision that we want to allocate a block of time to deal with this whole question of how ABCs should be reviewed in the future.
The clerk points out to me that under the standing orders, the last revision, there was a change made under which the various policy committees have the ability to review ABCs that fall within their areas of concern, but that has not been done. Something that the committee could be looking at is sort of assigning or requesting other committees to take a look at a variety of ABCs that fall within their areas of concern. That is another possible option available, but it is a pretty big question and something that we are going to have to devote some time to at some point in the not-too-distant future.
Before we close off the meeting, I will pose this to the committee. The clerk would like to review, primarily for the new members, the way in which we deal with expenses on the committee and how you submit for expenses and so on. We can do this off the record; it may make members a little more comfortable in terms of getting into some of the nitty-gritty.
Mr McLean: I noticed on our schedule about the financial budget. Are we dealing with that today? Is it not on today's agenda?
The Chair: No.
Mr McLean: Oh, that is Wednesday the 19th. Okay.
The Chair: If there is no objection, I am going to allow Hansard to close off and we will conduct the remainder of the meeting without the presence of Hansard.
The committee continued in camera at 1110.