CONTENTS
Wednesday 18 November 1992
Ontario Hydro president
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
*Chair / Président: Kormos, Peter (Welland-Thorold ND)
*Vice-Chair / Vice-Président: Huget, Bob (Sarnia ND)
Conway, Sean G. (Renfrew North/-Nord L)
Dadamo, George (Windsor-Sandwich ND)
*Jordan, Leo (Lanark-Renfrew PC)
*Klopp, Paul (Huron ND)
McGuinty, Dalton (Ottawa South/-Sud L)
Murdock, Sharon (Sudbury ND)
*Offer, Steven (Mississauga North/-Nord L)
Turnbull, David (York Mills PC)
Waters, Daniel (Muskoka-Georgian Bay ND)
*Wood, Len (Cochrane North/-Nord ND)
Substitutions / Membres remplaçants:
*Bradley, James J. (St Catharines L) for Mr Conway
*Harnick, Charles (Willowdale PC) for Mr Turnbull
*Hope, Randy R. (Chatham-Kent ND) for Mr Waters
*Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince
Edward-Lennox-Hastings-Sud ND) for Ms Murdock
*Ward, Brad (Brantford ND) for Mr Dadamo
*In attendance / présents
Clerk / Greffiére: Manikel, Tannis
Staff / Personnel: Anderson, Anne, research officer, Legislative Research Service
The committee met at 1530 in committee room l.
ONTARIO HYDRO PRESIDENT
Consideration of the designated matter pursuant to standing order 125, relating to the departure of the president of Ontario Hydro.
The Chair (Mr Peter Kormos): It's 3:30. We're going to start. All caucuses are represented. There's a quorum.
I can indicate to you that there are no witnesses present to participate. I'm going to call on the clerk to update the committee on the status of invitations and potential witness or participant response. I want to remind people that the 12-hour time frame in which the 125 issue is to be dealt with is the 12-hour time frame considered by the subcommittee for the hearing of witnesses and the writing of a report. These procedural matters do not detract from that time.
Clerk of the Committee (Ms Tannis Manikel): Starting on the first thing, Mr Hind has indicated dates that he could not appear, so I've been contacting his office to try to schedule him for December 7. We haven't confirmed that yet.
You have before you two letters. One is from Anne Noonan, in response to the first letter I sent out, indicating that she will not be attending. The verbal response from her on the phone seemed to indicate that she didn't have time to come to Toronto for the hearings. I don't know whether I should be sending her a second request or not.
I called Mr Leonoff to see if he could attend today, but he's in Washington so he couldn't attend and I haven't heard one way or another on Monday.
We had a phone call from Mr Joseph O'Brien. He thought the matter had been put to rest and that's why he hadn't responded to our letter. He will not be attending.
You have before you another letter from Mr Mathur. He has indicated to our second request that he will not be attending.
I had a call this morning from Mr Al Holt. He received the second letter from the committee. He had no objections to appearing before the committee per se but, because of the clause in the agreement, he did not feel he could in any way attend unless Ontario Hydro agreed that he could attend and talk to this committee, or pursuant to a Speaker's warrant. I think that's everyone I've heard from.
The Chair: Thank you. I'm satisfied at this point that the Chair cannot, because of the standing order, unilaterally call upon the Speaker to issue a Speaker's warrant and that matter, having been presented by way of motion from the committee and defeated, is ended at least in so far as the committee is concerned. However, the Speaker is considering a point of privilege which may well say to the contrary. If that's the case, then so be it. At the same time, there's no indication of the time frame for that response by the Speaker to the point of privilege raised by Mr McGuinty.
Therefore, in view of the fact that there are 11 hours and seven minutes left of this matter, the 125 issue, I request that the clerk continue to request that these people appear, subject to any contrary instructions from the subcommittee and subject of course to any direction or a response by the Speaker to the point of privilege raised and subject to any direction the committee may wish to give the clerk, but not such direction that can usurp the function of the subcommittee.
Mr Steven Offer (Mississauga North): With respect to the issue we're discussing, and I listened closely to what you said, Mr Chair, with respect to the issue that the Speaker is going to be making somewhere in the future a decision on the motion moved by my colleague, I would ask for your ruling that this matter be moved to subcommittee for further discussion.
The Chair: In my view, any member of the subcommittee has the right to call for a subcommittee meeting. I would think that Mr Jordan, being the author of the 125 application, if he wished, could advise the clerk of his desire for a subcommittee meeting and the subcommittee would be obliged to meet.
Mr Offer: On that basis, after having brought this forward, we could move into subcommittee for further discussion on this matter and then I would think possibly reconvene the matter in five or 10 minutes.
The Chair: So you're suggesting a 10-minute recess while the subcommittee meets.
Mr Offer: That's right.
The Chair: We'll recess for 10 minutes.
The committee recessed at 1535 and resumed at 1624.
The Chair: We're ready to resume. The subcommittee met this afternoon during the recess. The subcommittee report is as follows:
"The majority of the subcommittee decided that there has been a proper request for witnesses and the witnesses have indicated that they will not attend. Therefore the Chair shall report to the Legislative Assembly on the non-attendance of the witnesses and request that Speaker's warrants be issued."
That report of the subcommittee is now before the committee. If there is any discussion on the report, please indicate now.
Mr Bob Huget (Sarnia): I'd like to move a 20-minute recess. I need a 20-minute recess.
Mr Charles Harnick (Willowdale): Why?
Mr James J. Bradley (St Catharines): To get marching orders from the whip.
The Chair: We'll recess for 10 minutes until 4:35.
Mr Huget: Ten's good.
Mr Bradley: They've got to go to the Premier's office and get their orders.
The Chair: We've recessed until 4:35. I've done it for other caucus members when they've requested it and I don't propose not to do it for Mr Huget.
The committee recessed at 1625 and resumed at 1637.
The Chair: We're ready to resume. The report of the subcommittee had been made to the committee. There is now time for discussion of the subcommittee report before calling for a vote. Any discussion regarding the subcommittee report?
Mr Offer: On a point of order, Mr Chair: Is a vote necessary?
The Chair: I haven't called for one yet. You might want to raise your point of order then.
Is there any discussion about the subcommittee report? There being certainly no further discussion, I'm prepared to call the question and put the subcommittee report to a vote.
Mr Offer: On a point of order, Mr Chair: I do not believe that a vote is necessary on this report of the subcommittee, and if you'll permit me, I'll explain why. As you will know, the matter that is being discussed is pursuant to rule 125. Under rule 125(b), it states, "The subcommittee shall make a report to the committee," and it talks about the areas that the subcommittee is permitted to make a report on to committee.
That area is, firstly, the names of any witnesses--that's the identification of the people to be brought forward--secondly, invitation, which means, have those people been invited? Thirdly, the words are "to appear before the committee." So in the words of 125(b), the last line and a half state, dealing with the consideration of the matter, that "The subcommittee shall make a report to the committee" dealing with "the names of any witnesses to be invited to appear before the committee."
Mr Chair, I understand that individuals have been identified, hence they have fallen within 125(b) under the phrase "names of witnesses." I understand that invitations have gone to those witnesses and that has been done through you, Mr Chair, to those individuals.
Appearance has also been requested, and I heard at the beginning of the committee that there were responses to the clerk indicating that the names of the witnesses to be invited to appear responded by not appearing. I believe it is within the jurisdiction and the responsibility of the subcommittee to make a report on those matters: names, invitation, appearance or lack thereof. The subcommittee has made that decision. They have made a decision, which is a report of the subcommittee to the Chair.
I now move to standing order 125(c) because it states: "A report under this standing order from the subcommittee on committee business"--and I remind everybody it has been done; you are looking at the report--"shall be deemed to be adopted" by the committee. That is the rule, 125(c).
You have before you a report of the subcommittee on matters within the jurisdiction of the subcommittee by 125(b), and under 125(c) a vote is unnecessary because the report "shall be deemed." We know why that is necessary. It is necessary because it shall be left up to the will of the Legislature to decide yes or no to a report of this nature.
Remember what the principle of 125 is. It is a right given to all members of the Legislature to bring forward a matter that they believe is important to be decided within a certain time frame by a committee of the Legislature. It is not a matter which is intended to be thwarted by committee. It is a matter for which decisions of witnesses' invitations and appearance are left to the subcommittee, to be reported and deemed to be adopted by the committee and hence reported to the Legislature for final approval.
That is the essence and the intent of this rule and privilege given to all members of this Legislature. We fall strictly within 125(b). The report of the subcommittee is before the members of this committee. It is then left to 125(c), and the clear ruling of 125(c) is that a report under this standing order from the subcommittee shall be deemed to be adopted.
My position is that as the subcommittee has made this decision that it is now before the committee--but not for a vote; it is for a reporting only--it must be deemed to be accepted by the committee. Our rules say that, and then it is to the will of the Legislature to make the final decision. It is something which I believe all people will understand and accept. To do anything else is to thwart the very fundamental principle as to what 125 and a rule under 125 is and was to be given to each member of this Legislature.
Mr Bradley: Clear to me.
The Chair: You don't have to repeat that, though.
Mr Bradley: All the lawyers know this is true.
Mr Huget: First of all, obviously I don't agree. The standing order referring to the deeming of the adoption of a subcommittee report--because the subcommittee report that was deemed to be adopted adhered to the items under (b), which includes a precise statement of the matter to be considered, the time to be allocated for the consideration of the matter, the date on which consideration of the matter is to commence and the names of any witnesses to be invited to appear before the committee, that subcommittee report was deemed adopted.
From here on in, I believe we're into a different process and, in my opinion, this is a new report, a new situation, that would require, as far as I'm concerned, a vote in full committee. I will add as well that nowhere in the standing order is the right to subpoena witnesses part of the subcommittee's role.
Mr Harnick: No, that's not what was said. That has clearly nothing to do with this. That's something that the report of the subcommittee leaves to the Legislative Assembly, and the report is quite clear. The report, furthermore, deals with the appearance of witnesses before the committee. Surely if you can ask witnesses to appear and they don't appear, the subcommittee is totally neutered if they can't take the next step.
I might remind the Chairman that we had a discussion somewhat similar to this two weeks ago where we were requesting allocation of time for witnesses and I might remind the Chairman what his opinion was at that time about the decisions of the subcommittee being final in regard to these matters. I remind the Chairman of the opinion he expressed on that day, which was quite simply that the report was deemed to be accepted. This is certainly within the parameters of subsection 125(b).
Mr Offer: Very briefly, I think it's absolutely necessary to respond to the erroneous comments made by Mr Huget. It is clear that the report of the subcommittee does not issue a Speaker's warrant; it requests the Speaker to issue warrants. We recognize the role of the Speaker. We also recognize the role of the subcommittee. We also recognize the role of the Chair. This is the procedure that has been laid down. Rule 125 is that right given to members and it is a right that cannot be thwarted by committee members and should not be thwarted by committee members, but it is a right that will always be subject to the will of the Legislature.
If you are going to say that this report, which has already been made--it's already out of the barn as far as I'm concerned. The report has already been made. This is not a debate as to whether a report can be made. The report has been made. You've got it in front of you.
To me, on my point, a report under the standing order, from the subcommittee on committee business, shall be deemed to be adopted. My submission is that a report under the standing order, from the subcommittee on committee business, has been made and so it has to be adopted. Those are the words of rule 125(c). As such, I believe that my point of order, where a vote is unnecessary with respect to the specific words of 125(c), is in order and this report of the subcommittee must be adopted by the committee and reported by the Chair to the Legislative Assembly.
Mr Paul R. Johnson (Prince Edward-Lennox-South Hastings): Mr Chair, I was just wondering if you might be able to clarify this report for me and the fact that at the end of this report there is a request that a Speaker's warrant be issued. Is that something this subcommittee can request?
The Chair: The subcommittee report speaks for itself.
Mr Johnson: Is that in order?
The Chair: One moment. We've got a point of order already.
I put it to the committee for the purpose of the committee voting on it, which is the usual course, subject to any exceptions provided for in the standing orders. Mr Offer, on a point of order, said that was improper, and his argument, in essence, is that it ought to be deemed, pursuant to 125. Mr Hope.
Mr Randy R. Hope (Chatham-Kent): I think Mr Huget had something.
Mr Huget: I obviously don't agree with the perception of Mr Offer. I think the deeming of acceptance of the subcommittee's report on those items that included the matter, the time, the date and the names of witnesses to be invited is proper. However, this is a new issue, a new sub report, a new situation, and this subcommittee report, like many others, should be subject to a vote of the committee.
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The Chair: Any further discussion? Okay.
I understand the issue to be whether the subcommittee report ought to be put to a vote, as is the usual course in reports from a subcommittee--this means that a subcommittee report in the usual course has no status in itself unless it is adopted by vote by a majority of the committee that it's reporting to--or whether it falls within the scope of standing order 125, which deems subcommittee reports dealing with those particular issues under standing order 125 to be adopted, which means they don't have to be put to a vote.
I should indicate that in the subcommittee meeting, the propriety of the motion which constitutes the body of the report was questioned. Indeed, on Monday, which is the last time it sat, the committee heard and entertained a motion from Mr Harnick which proposed essentially the very same thing. The majority of the committee voted against that motion, defeating it.
The question was raised in subcommittee relying on the long-time and traditional argument that you can't raise the same matter after it's been basically voted down. My position then was that it was proper for the motion to be made in subcommittee because subcommittee is not a reflection of the committee per se. A subcommittee can only do things which are subsequently approved by the committee. The subcommittee I thought, and although it's not a perfect analogy, was perhaps more analogous to a House leaders' meeting.
First of all, with respect to subcommittees, subcommittees have cleaned up things that have been done in committee on more than one occasion that I've witnessed. That is to say, a committee may make a decision based on majority vote and the subcommittee will subsequently meet and correct or deviate from that position or alter it, just as the House leaders on occasion clean up what took place in the House and correct or alter or deviate from what took place as a result of a majority vote in the House.
I was satisfied that the motion, which forms the body of the subcommittee report, was validly put in the subcommittee notwithstanding that a similar motion had been dealt with by the committee on Monday past.
As well, it's clear I think to everybody that the only body that can produce a Speaker's warrant is the assembly itself, and that regardless of what happens in this committee, this committee in my view clearly has no authority to issue or even demand the issuance of a Speaker's warrant. It's only as a result of the decision of the assembly, and that's section 35 of the Legislative Assembly Act.
My understanding is that this would be a majority vote in the assembly. There is no stated procedure for how a committee obtains, or seeks rather, a Speaker's warrant from the assembly. The long-time procedure is to do it by way of report from the committee. That once again clearly implies, subject to any exceptions like a deeming exception, that the majority of the committee, before the report can be presented, has to approve that report, which means the majority of committee is the one that puts the report to the House and the Chair of the committee rises, during that period of time for reports of committees, makes the report of the committee and the House votes on it, either for it or against it.
That seems to me then to imply that even the Speaker can't unilaterally issue a Speaker's warrant. It implies very strongly to me, reading section 35 of the Legislative Assembly Act, that even if the Speaker witnesses the most capricious disregard for a committee or for the assembly, the Speaker himself hasn't got the authority to issue a Speaker's warrant. It's only at the will of the assembly.
We did, as Mr Harnick indicated, discuss what standing order 125 meant, whether it would apply to subcommittee reports and whether, for instance, a subcommittee could revisit an issue that was dealt with in subcommittee in the first instance when it made its report dealing with the 125 designation.
All of us in the subcommittee and on the committee during the course of those discussions read very carefully standing order 125, in particular paragraph (b) of standing order 125 which indicates what the subcommittee shall do with respect to a 125 designation. That is to say, that it shall report to the committee a precise statement of the matter to be considered. I don't think there's any debate about that. That's clear and that's not an issue.
Secondly, the time to be allocated for the consideration of the matter: Once again, in this particular point of order, it's not an issue. The date on which consideration of the matter is to commence: Once again, with respect to this particular point of order, not an issue.
Paragraph (b) says the subcommittee shall make a report that shall include these four things, and the fourth one is "the names of any witnesses to be invited to appear before the committee." The issue I believe is whether, among other things, the requirement that this be included in a subcommittee report includes the power of a subcommittee to respond subsequently to their non-attendance.
It was interesting that standing order 120, paragraph (d), says, "Disorder in a standing or select committee can only be censured by the House on receiving a report from the committee." That confirms the long-time procedure utilized with respect to, in effect, reports seeking Speaker's warrants, that only the committee can report disorder.
What that would mean is that even for the most serious and most disrespectful disorder, if the majority of the committee for whatever reason, including, sadly, the most capricious of reasons, voted against a report or against a motion to report that disorder, once that was done, there would be no power for anybody else to report disorder in such a way as for the assembly to consider it.
I made comments on Monday, which I neither regret nor retract here in the committee, expressing my concern about what I perceived as perhaps a failure to see the distinction between compelling attendance and permitting people, once they are here as witnesses, to raise objections to the questions put to them. I saw it as extremely important for the integrity of the committee process that if people are called to the committee, they should come to the committee, regardless of their apprehension about the questions that are to be put or their trepidation about the impact of the answers. There are all sorts of safeguards available to them once they're here.
I come from a professional tradition wherein, if somebody declines to appear--and appreciating that these are committees and not judicial hearings--it doesn't require the majority of the participants, it doesn't require consensus between, let's say, both litigants for an adjudicator to compel that person's attendance, but the mere fact of their non-attendance can result in compelled attendance. It doesn't require consensus, unanimity or even majority decision in terms of the participants.
I was very concerned about the non-attendance of the witnesses. I was similarly concerned about the failure of the committee by majority to make a report to the Legislature, to the assembly, seeking Speaker's warrants for those people, but it remains that it is the committee members' rights to vote as they wish. That can't be interfered with.
I was particularly interested in whether or not the subcommittee had the power not just to make the motion that it did today, but to have that report then deemed to be adopted so it would not be subject to the whim of the majority, such as the motion of Mr Harnick--and again "whim" is perhaps an inappropriate word--was submitted to the rule of the majority in such a way that it was defeated.
The clerk has provided a great deal of background on the matter, which really in effect amounts to very little background because standing order 125, previously 123, is a relatively recent phenomenon passed by the last Legislature, and I remember the implementation of it well. There's simply no doubt about it: It is designed to provide an as-of-right procedure for opposition members, notwithstanding that government members can take advantage of it as well.
It is obvious that this particular 125 application illustrates some of the lack of completeness in standing order 125, because we encountered it when talking about whether or not the subcommittee could revisit those very specific issues, those four issues talked about in paragraph (b).
Clearly, when people were drafting this and designing it they didn't contemplate many of the difficulties that have been encountered, especially those during this particular 125 designation. It's obvious that if the 125 designation is a somewhat fluffy one, perhaps zebra mussels, you're not going to find the problems, because the government members, being the majority, aren't going to raise a whole lot of concern. That's not the point, though, because clearly if you're going to give opposition members a right to do something, you've got to consider not just the fluffy stuff, not just the vanilla, but the hard stuff as well.
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I am very disappointed in the lack of clear provision to permit opposition members to follow up on their initial application or their initial designation. They've got the power to designate a 125 hearing; they've got the power by virtue of the opposition control over the subcommittee to determine how long it's going to be, up to 12 hours; to determine when it's going to start; to determine exactly what it's going to consist of and to determine who is going to be invited to appear.
I mean, who determines who's invited to appear, that shot is called by the opposition, clearly, in the instance of an opposition application designation. But there isn't any provision in the powers of the subcommittee as to--the powers of the subcommittee are unlimited. It can do anything it wants, subject to the committee approving it, subject to the committee passing that report. It's only those very specific four issues that can be part of a subcommittee report under a 125 designation, which benefit from a deeming, which means it doesn't have to submit itself to a vote and to the will of the majority.
I think it's really regrettable, not just in this instance but in the long term, that there isn't an ability for subcommittee or for opposition members, through whatever avenue, to enforce the attendance of people who are invited at their instance as witnesses. Obviously, the message that can go out is that people can simply not attend, and if it's the government will that they not be here as witnesses, then it's done and over with, because the government will can preclude a vote by the committee presenting a report calling for Speaker's warrants, which means that these 125 proceedings, as concessions to opposition and as means of opposition members to explore avenues, as of right and unrestricted, becomes virtually meaningless.
All of my real, genuine concern about that, having been an opposition member and knowing how important these most modest of concessions are to opposition members, doesn't change my interpretation of paragraph (b), that the powers of the subcommittees, in so far as what they can report and have deemed, as compared to voted on, are clearly only those powers, those four issues, that are articulated very specifically.
I hear what Mr Offer says, but I can't agree that the names of any witnesses to be invited to appear before the committee--that is the most preliminary stage of things. It doesn't provide the subcommittee with the power to determine the issuance of Speaker's warrants for witnesses. It very specifically talks about the invitation of witnesses, clearly keeping the issuance of Speaker's warrants or even the request for Speaker's warrants to be a second step in a far more commanding or compelling one to the committee and subsequently to the assembly.
So with real regret--and I welcome correction; I welcome the Speaker or the assembly saying that I'm incorrect in how I interpret this; I look forward to that--but for all the reasons I've stated, and having obviously listened carefully to all of the arguments and considered the matter, I feel compelled and do rule that there is not a point of order and that this matter has to go to a vote before the committee.
Mr Bradley: If you'll allow me to speak on the motion, then--
The Chair: There is a report to the committee. Go ahead.
Mr Bradley: I'm not going to speak to your ruling. There may be others who will speak to your ruling--
The Chair: Of course not. The power to challenge the Chair was similarly taken away by the last Legislative Assembly.
Mr Bradley: --but since you are making that ruling, and it appears the only hope is that the majority of this committee is going to concur in having the subpoena or the Speaker's warrant to the witnesses, listening to the previous debate, I would come to the conclusion that the broom that is sweeping this under the rug has 74 bristles and that six of those bristles are sitting across from us at the present time. I hope I am wrong, because to deny this committee the opportunity to request that the Speaker provide warrants for the witnesses to appear would be against everything the New Democratic Party has stood for in opposition and in convention and in the history of that party.
One would wish--and we can't do this of course; it's beyond my power--that Jim Renwick were here to witness what is happening this afternoon, great defender that he was for the New Democratic Party and for the people of the province of Ontario, of the rights of committees, because I sat on committees with Mr Renwick.
Unfortunately, Mr. Chairman, I see the long hand of the Premier's office in this piece, reaching well into the committee as it is this afternoon, with instruction to government members to vote not how one would anticipate each of them in their lives would have voted in opposition, or if they were voting their conscience, but voting in a manner which the government deems to be most appropriate.
It is obvious to me so far--and I hope to be proven incorrect in this matter and would apologize to the government members were this the case--but it certainly appears that the government wishes not to have these witnesses appear before the committee, wishes to place a gag order on them through the auspices of Ontario Hydro because it would be embarrassed by the testimony that would be forthcoming from these individuals, the testimony on the platinum handshake which will be given to Mr Holt and the testimony on how Mr Holt ended up retiring from his position, as the Minister of Energy would say.
So my hope is that those who have stood for office over the years, who have fought the good fights over the years, would today stand on their principles instead of on the political expediency of having their way smoothed to the cabinet table or to ingratiate themselves to the gentleman who is now in the Far East and still has great control over the government caucus.
I implore the members of the government to agree to have this warrant issued to each of these witnesses so that the public and members of this Legislature and the news media can determine what happened and why it happened.
To conclude, one would say that if the government wished to fire Mr Holt, one would have wished that it would have the intestinal fortitude to fire him if it sees fit and then explain why, instead of engaging in a coverup and a charade such as we have seen so far, which I hope you will reverse by the vote that you cast this afternoon.
Mr Huget: Unfortunately, Mr Bradley was not here at Monday's meeting, but I think we made it very clear at that meeting, and if it isn't clear, then we'll make it clear again: The government's not participating or interested in any coverup of anything. The government simply refuses to use this committee as a vehicle to violate provincial law. It simply refuses to use this committee as a mechanism to violate the freedom of information act and privacy laws in the province of Ontario. That's simply what the issue is here.
I'm a little bit saddened by Mr Bradley's sort of, I guess, imaginary look at what he feels the intent of anyone is on this committee or what the intent of the government is. I know he has the ability to speak for himself and indeed think for himself, but I would ask him to confine his duties to that.
Mr Harnick: I'm a little surprised about this argument about the government protecting a violation of the law. Nothing could be more ridiculous; nothing could be more wrong. Every time a trial takes place in any matter, there is always a possibility that improper questions can be asked.
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Mr Huget: This is not the Supreme Court.
Mr Harnick: This may not be the Supreme Court. It's the Legislative Assembly of Ontario, and there is no higher authority than the Legislative Assembly of Ontario, in spite of the fact that you, as the government, don't want to admit that, which is awfully strange.
Mr Huget: There is a higher authority. It's the public.
Mr Harnick: Well, I have the floor now, Mr Huget.
Mr Huget: I apologize, Mr Chairman.
Mr Harnick: Furthermore, it astounds me that the government wants to protect witnesses to the extent that they don't believe they can come here, be represented by counsel and be told, when asked a question that violates or purports to violate the provisions of the Freedom of Information and Protection of Privacy Act, that they shouldn't answer that question. They have the protection of their own counsel, they have the protection of the Chair and they also have the opportunity, if they wanted to really have a hearing, to take this hearing in camera so that we don't have to worry about those violations.
I know that's something our friends in the press would not be happy about, because the experience last time was that they were somewhat upset that they didn't get to hear certain pieces of information they really wanted to hear. I can appreciate that frustration, but the fact of the matter is that we were still able to have the hearing and no one's rights were violated.
For the government to hide behind that argument is positively the most hypocritical thing I could ever imagine. I think you should be ashamed, and if you have nothing to fear by listening to this evidence of the people we've invited and you're not wanting to cover it up, then you'll rely on each of these witnesses to come here with their counsel to advise them about which questions are proper and which are not.
You rely on your own Chairman, a member of your party, to protect those same witnesses, and surely his political beliefs are the same as your political beliefs. You elected him as the Chairman of this committee, and you hold the majority on it. The fact of the matter is, what greater protection can there be for the witnesses? For the government to stand behind this very flimsy argument just smacks of nothing short of a coverup.
Mr Len Wood (Cochrane North): Hundreds of thousands of people retire every year, Charles.
Mr Harnick: And hundreds of thousands are also fired.
Mr Johnson: Mr Chair, I would prefer, in a sense, not to get involved in this; however, I have to say a few things. The inferences made by Mr Bradley, I think, are inaccurate and not correct. His characterization of me and my colleagues on the government side are not accurate either.
I want to say that having been substituted into this committee, as Mr Bradley was, I've tried to understand how we've got to the point we're at today. It becomes clear to me that if we were to subpoena, if you will, or have Speaker's warrants to bring these people in, those people who are no longer in the province of Ontario do not get served a warrant, so the broader examination of all the people who are involved would not be complete. This is how I, as one who has been substituted on this committee, have seen it. I think there will be people who will not be brought in before this committee, and so any kind of examination into these concerns wouldn't be complete.
Mr Offer: I'd like to make a few comments on this matter. This issue that is now before us--and I recognize you've made a decision on the report of the subcommittee as to whether it shall or should not be voted upon. The issue before the committee is whether this report, which is a request of the Speaker to issue a warrant, is going to pass. That's what's before you. It is a request of the Speaker. The question you have to ask yourself is: Are you going to subvert the inquiry before this committee? You can speak erroneously, as you have, about protection of individuals. I say "erroneous" because there is protection of people who come before committees of this kind. We have a letter from the privacy commissioner himself.
He has indicated that it is okay. Mr Wright has indicated it is not a breach to come before this committee. The question is now, notwithstanding the positions the government members have taken earlier on about gagging this committee and this inquiry, you have an Information and Privacy Commissioner who has said: "Yes, we can move committees in camera. We can provide protection. Witnesses before committees can provide protection." The question you have to ask yourselves is: Are you, as members of this Legislature and members of a committee, going to allow people in the province to say no to attending before a committee? If you vote against this report, you are saying to individuals before this committee today and future committees that they can say no.
This matter we are dealing with is of very great importance. It's important to many millions of people in this province. They want to know what happened. They want to know what the facts are. We have a committee. We have rules that we can and will abide by, as we have in the past and will in the future. Your responsibility as members, as ours is, is to send out a message. Are we, as members of the Legislature, as members of a committee, when an individual does not wish to come before a committee, going to take a matter of non-attendance to the Speaker to issue a Speaker's warrant?
It is not a matter of privacy, though Mr Wright has indicated this is not an issue at all. It is not a matter of protection of individuals, because that takes place every day in this Legislature; it is a matter as to whether we are going to deal with this issue, whether we are going to allow the Legislature and the Speaker to do what is their right, to do what is the will of a committee, under rule 125, to call before the committee individuals who can shed light on this issue. If you vote against this, you gag this committee; you sweep this matter under the table.
Today it is this matter; tomorrow we do not know what the issue will be. You are setting a dangerous precedent in this province. You are allowing individuals who should appear before legislative committees to say no without any warrant issued, without any request for a warrant issued. That is the responsibility of members of this Legislature. That is something of our responsibility. It is going to be brought before you now. Are you up to meeting your responsibility or not? If you vote in favour, you are, and we can deal with all of the issues of confidence, privacy. We can deal with the issues of in camera proceedings. We did so in the Shelley Martel affair; we can do so in all matters. The question is whether you are ready to meet your responsibility.
This is a matter which must be dealt with. It is our right; it is our responsibility. Do not subvert; do not, as government members, gag a committee from doing what is its responsibility. You have that opportunity to say yes. The question will be: Will you, or will you just sweep this matter under the rug?
Mr Bradley: Seventy-four bristles.
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Mr Harnick: Mr Chair, I--
The Chair: One moment, Mr Harnick. Mr Huget.
Mr Huget: First of all, I think we should be clear about something here too. I certainly listened with interest to Mr Offer's comments, but as far as this government participating in a coverup or trying to hide anything, I think people's memories only have to go back to Monday. The Minister of Energy appeared at these hearings.
Mr Offer: Vote yes.
Mr Huget: He answered all the questions put to him openly and honestly.
Mr Harnick: Let's hear the other people to see if they agree with him.
Mr Johnson: You invited them and they don't want to come.
Mr Harnick: You won't let them come.
Mr Huget: The government has nothing to hide here.
The Chair: One moment, Mr Huget. I really don't care whether two people talk at the same time or whether three people talk at the same time, but the people who work here for Hansard work real hard for a lot less money than most MPPs make and deserve better treatment and more consideration.
Mr Bradley: You mean they're that badly paid?
Mr Huget: Thank you, Mr Chairman. For my part, I apologize.
Frankly, I find it offensive that legislators here are asking individuals to potentially break the privacy act. When you look at their responses--these witnesses have received legal advice--it's clear they're doing so, refusing to attend, with legal advice.
There's a question here about Mr Holt's retirement and some details of Mr Holt's retirement package. You have a right, as a member, to request that information out of the freedom of information act. Why don't you just do that?
Mr Harnick: If I have the right, why don't we do it right here? If I have that right and the Vice-Chair of this committee, the government whip on this committee, acknowledges that I have the right to that information, then let's get Mr Holt here and let's ask him.
Mr Offer: Vote yes.
Mr Harnick: And he can vote yes, because he's now speaking out of both sides of his mouth.
Mr Huget: Put in another request under freedom of information. That's all you've got to do.
Mr Harnick: I notice, in this letter from Anne Noonan dated November 18, a reference to a letter dated November 11. I don't know if we've received that letter. I don't know if that letter has been handed out, but I gather that is the letter that is the basis of the legal advice coming from Ontario Hydro.
Mr Chair, now that we have Mr Huget's learned opinion on the record that I'm entitled to the information and now that we have Mr Wright's information, the privacy commissioner, that we wouldn't be breaching the privacy act, I wonder if we shouldn't refer the letter from Ontario Hydro, which we haven't seen, to the privacy commissioner and, as well, refer the letter to legislative counsel, who has also rendered an opinion that we won't be breaching those provisions, and ask for an opinion about this particular letter, which I have only now seen for the first time.
It seems to me it would be reasonable that we ask our very own privacy commissioner, number one, whether he agrees with this letter, and number two, what safeguards he and legislative counsel could provide us with to allay the fears of the government members on this committee.
The government members of this committee have not done one single thing to try to make provision to permit people to attend here so they could give their evidence in a way that doesn't violate the concerns they've raised. They have not done one single thing to be flexible, to attempt to hear those witnesses.
What I suggest is that we do not vote on the Speaker's warrants at this time but that we refer this letter to the privacy commissioner.
I don't have any signed copy. Is there any reason for that?
The Chair: Turn it over.
Mr Harnick: Oh, okay.
Mr Bradley: It's the same answers I've seen for 15 years from Ontario Hydro.
Mr Harnick: It seems to me that before we do anything and if the government really wants to have the witnesses attend and be protected, we should refer this to our own counsel and the privacy commissioner and ask them what safeguards we could put in place so that the fears of the government wouldn't arise.
The Chair: Is that a motion to defer?
Mr Harnick: Yes.
Mr Paul Klopp (Huron): No. There's a whole bunch of stuff he was rambling on about.
Mr Harnick: What do they have to lose by referring this to the privacy commissioner and to legislative counsel and asking what safeguards they could provide us with so we could go on with this hearing?
Mr Brad Ward (Brantford): Just a question through you, Mr Chair, to the clerk on a point of order. One letter is dated November 11, the other is dated November 16 and we're just receiving them now. Is there an explanation for that? That's the point of order.
The Chair: Yes, the one on November 16 is particularly recent.
The one on November 11 wasn't one of the letters of refusal but was there for people had they wanted it. It wasn't distributed, but it wasn't unavailable; nobody was hiding his light under a bushel.
Mr Harnick, you can do anything you want with these letters now that you have them, or any member of the committee can, or anybody else.
Mr Harnick: Well--
The Chair: Wait a minute, please. But we've got a subcommittee report; that's to be voted on. If you want to make a specific motion to defer the consideration of that subcommittee report, do that, and people may or may not raise issue with that motion. But make a very specific motion, if that's what you want to do.
Mr Harnick: I'm going to lose anyway, so forget it.
Mr Leo Jordan (Lanark-Renfrew): Mr Chairman, can I make a comment on this letter that we've just now received?
Mr Hope: Mr Chairman, is he speaking on the motion?
The Chair: Yes, he's speaking to the motion. You'll have a chance to speak to it.
Mr Hope: He is speaking to the letter.
The Chair: Go ahead, Mr Jordan.
Mr Jordan: The last sentence: "Because of the restrictions which our witnesses would be under, we believe that there is little these witnesses would be able to contribute to the committee's inquiry." He's not saying they can't appear; he's just saying that because of the limitations that he sees on them, they wouldn't be able to contribute much. Well, we can decide that after they appear.
The Chair: Thank you, sir. The report of the committee begs voting upon. There being no further discussion about the report of the subcommittee, I'll read it again: "The majority of the committee decided that there has been a proper request for witnesses, and the witnesses have indicated that they will not attend. Therefore the Chair shall report to the Legislative Assembly on the non-attendance of the witnesses and request that Speaker's warrants be issued."
Mr Offer: Recorded vote, please, Mr Chair.
The Chair: Recorded vote. Shall the report of the subcommittee be adopted? All those in favour of adoption, please raise your hand and keep your hand raised until your name is called.
Ayes
Bradley, Harnick, Jordan, Offer.
The Chair: All those opposed to adoption of the subcommittee report, raise your hand and keep your hand raised until your name is called, please.
Nays
Hope, Huget, Johnson, Klopp, Ward (Brantford), Wood.
The Chair: The report of the subcommittee is not adopted.
As I indicated at the onset, subject to any further direction from the committee, I've requested the clerk to continue to make efforts to invite, in accordance with the report of the subcommittee, the people named by the subcommittee, pursuant to the 125, to continue to invite those people to attend.
Any further matters?
Mr Harnick: May I make a motion, Mr Chair. I would move that the letters of November 11 and November 16, 1992, be referred to legislative counsel and be referred to the privacy commissioner for their independent opinions, and that a request be made of each of those individuals for methods to safeguard the giving of evidence by those whom we've invited to attend, such that their evidence will not violate the privacy concerns that they have.
1730
The Chair: Will you do the committee a favour and write that motion out so that it's very clear? I'm sure you referred to "legislative research"--
Mr Harnick: I think I said "legislative counsel."
The Chair: --which has access to counsel, and which is the body Ms Anderson assigned to the committee.
Mr Harnick: Can I ask Hansard to read that back for us? I don't think I could do it any better.
The Chair: That is what you wanted to say, "legislative counsel," not "legislative research," which has access to counsel and which is the research body assigned to this committee.
Mr Harnick: The person I'm really referring to is the person who gave us the first opinion.
The Chair: Yes, that's why I'm suggesting that's why you meant to say "legislative research."
Mr Harnick: You can amend that--
The Chair: No.
Mr Harnick: --or I can amend that to reflect whatever it is you're saying, because I don't really understand what it is you're saying--legislative counsel who works for legislative research.
The Chair: Ms Anderson will please read that motion as she's recorded it.
Ms Anne Anderson: As I understood it, the motion is, "That the letters of November 11 and 16 be referred to legislative research service and the privacy commissioner for their independent opinion, and a request be made of each of those individuals for methods to safeguard the giving of evidence of those invited so that something will not violate these concerns."
Mr Harnick: Why don't we just say "so that the concerns of the government members will be allayed."
Mr Klopp: No, you were concerned the other day.
Mr Harnick: I have no concerns. They're all your concerns.
The Chair: We're not being very successful at getting a motion on the floor, are we, Mr Harnick?
Mr Harnick: I don't want to put the government members to the test of reviewing their own consciences.
Mr Bradley: You have really made it easy for the next government, I'll tell you.
Mr Ward: Fifteen years from now?
Mr Harnick: "So that the privacy issues are not violated."
The Chair: Please read Mr Harnick's motion again.
Ms Anderson: The motion is, "That the letters of November 11 and 16 be referred to counsel at legislative research service and the privacy commissioner for their independent opinion, and a request be made of each of those individuals for methods to safeguard the giving of evidence of those invited so that the privacy issues are not violated."
The Chair: Is that your motion, Mr Harnick?
Mr Harnick: Yes.
The Chair: Any discussion of that motion?
Mr Harnick: I have no discussion.
Mr Huget: In the absence of being able to read and reflect on the motion, which is somewhat problematic--I think it's standard procedure here that motions are tabled in writing; however, be that as it may--I would agree with part of the motion, so I'd like to make an amendment.
The Chair: First, it's not standard procedure, but go ahead, make the amendment.
Mr Huget: Okay. I'll refer to the back half, I guess, of the motion, where it requests advice. I can't amend something that I can't see, and I'd like to be able to see it.
The Chair: Have Ms Anderson read it again.
Mr Huget: Do I tell her, then, when to stop--
The Chair: Tell her when to stop.
Mr Huget: --and take that as the amendment?
The Chair: No. Ms Anderson, read this very slowly so that everybody can write it down.
Mr Harnick: Why don't you write it down as she reads it and then you'll have it written for you.
The Chair: Let Ms Anderson read it and she'll read it slowly so that people can record it.
Mr Harnick: Maybe you should print it so you can really understand it.
The Chair: Go ahead, Ms Anderson.
Mr Huget: You're the right one to give advice, Charles. You couldn't even remember what came out of your mouth.
Mr Bradley: I remember when Jim Taylor, the former member for Prince Edward-Lennox, broke with the government ranks on a Hydro issue and embarrassed his own government, but he was working for the people of the province when he did that.
The Chair: Ms Anderson is ready to read that motion, slowly.
Ms Anderson: The motion reads, "That the letters of November 11 and 16 be referred to counsel at legislative research service and the privacy commissioner for their independent opinion, and a request be made of each of those individuals for methods to safeguard the giving of evidence of those invited so that the privacy issues are not violated."
Mr Huget: Thanks very much. I would move then as an amendment that anything after the word "opinion" be deleted.
Mr Wood: Got that, Charles?
Mr Harnick: No.
The Chair: Mr Harnick is declining to adopt that amendment.
Mr Harnick: Now you will have to read it and stop at the word "opinion."
The Chair: Ms Anderson will now read the motion as proposed, as amended.
Ms Anderson: "That the letters of November 11 and 16 be referred to counsel at legislative research service and the privacy commissioner for their independent opinions."
The Chair: Thank you. That's the effect of Mr Huget's amendment to Mr Harnick's motion.
Mr Huget: Nothing further.
The Chair: You don't want to speak to your amendment.
Mr Huget: No.
Mr Harnick: I want to speak to the amendment.
The Chair: Go ahead.
Mr Harnick: What that amendment shows is that the government does not wish to make any attempt to accommodate this hearing at all.
Mr Bradley: None whatsoever.
Mr Harnick: None whatsoever. Furthermore, if that isn't absolute proof that the government members on this committee want to cover up what may come out, want to cover up what may contradict what their minister said here, because he was the only who has attended, and it's going to be pretty difficult to contradict him if nobody else shows, if that isn't the clear intention of what they're doing, if that wasn't clear before, it certainly is clear now.
The Chair: Further discussion? Go ahead, Mr Offer.
Mr Offer: Very briefly with respect to Mr Harnick's motion--
Interjection: I'd like to call Patrick Lawlor, if I can.
Mr Harnick: You guys get stupider with everything you say.
Mr Wood: People retire every year. You want to investigate each one?
Mr Harnick: Only one of them, as president of Ontario Hydro, was fired.
Interjections.
The Chair: Okay, one moment. I'm recognizing Mr Huget. You're on a point of order--I'm sorry, Mr Hope.
Mr Hope: I'm just referring back to your comments and I'm watching Hansard try to write all the comments that are being made. I was just trying to bring into perspective what you said earlier about one speaking at a time. I was just trying to get that in.
The Chair: Quite right, which is why I asked that all the mikes be turned off so that nobody would be recorded. Go ahead, Mr Offer.
Mr Offer: Very briefly, there's an opportunity once more for the government to treat this matter with a degree of severity, to treat this matter with a degree of responsibility. What you have to do is to recognize that you just can't snub your nose and sweep things under the rug. Here is a further opportunity to attempt to get further information on a matter which must be looked into. It is no more complicated than that.
But it is as serious as whether you are going to live up to your responsibilities as members of this Legislature. Stop snubbing your nose at what is going on in certain areas. You have a responsibility, as members of this committee, to look into these matters. Stop gagging this committee. Stop blocking any action that's taken in order to try to get further information. The interesting thing is, what are you so afraid of?
The Chair: Any further discussion around Mr Huget's amendment?
Interjection: None that warrants any response.
The Chair: All those in favour of Mr Huget's amendment, please indicate. All those opposed.
Mr Huget's amendment passes.
Is there any further discussion on Mr Harnick's motion, as amended?
All those in favour of Mr Harnick's motion, as amended, please indicate. All those opposed.
Mr Harnick's motion, as amended, passes.
Any further matters?
Mr Huget: I would like to refer to the responses we received this afternoon, one I believe in writing and the other one was a verbal response from Mr Holt. Is that correct? Could I ask the clerk, first of all, whether you could give me the response that Mr Holt gave you verbally.
Clerk of the Committee: Mr Holt said that he had received the second letter and that he felt he--
Interjections.
The Chair: Do you not want the clerk to be able to read that? She deserves better from the committee.
Clerk of the Committee: Mr Holt called me this morning. He said that he'd received the second request from the committee. He felt he'd made it very clear that while he has no real objection to appearing before the committee, there's a clause in his agreement with Ontario Hydro which prohibits him from discussing any of the events leading up to the agreement, so he felt he could not appear before the committee and discuss any of the events that led to the agreement. He would be more than happy to appear if the committee could get Ontario Hydro to agree to waive that section of his agreement.
Mr Huget: May I further ask if that is the clerk's interpretation of what Mr Holt said or is that an exact quote of what Mr Holt said?
Clerk of the Committee: That would be my interpretation of what he said. I was making notes as he was speaking.
The Chair: You're saying that's a précis of what Mr Holt said.
Clerk of the Committee: Yes.
The Chair: Thank you. Any other matters? No further matters? We are adjourned until Monday at 3:30 or immediately after routine proceedings.
The committee adjourned at 1743.