CONTENTS
Wednesday 27 March 1991
Pay Equity Commission
Appointments review
Leonard Gertler
Alan Levy
James Robb
Adjournment
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)
Wiseman, Jim (Durham West NDP)
Substitutions:
Cooper, Mike (Kitchener-Wilmot NDP) for Mr Hayes
Owens, Stephen (Scarborough Centre NDP) for Mr Silipo
Sutherland, Kimble (Oxford NDP) for Mr Frankford
Clerk: Arnott, Douglas
Staff: Pond, David, Research Officer, Legislative Research Service
The committee met at 959 in room 228.
PAY EQUITY COMMISSION
The Chair: I apologize for my late arrival. The first order of business is the 15-minute determination of whether the committee concurs in the intended appointment that we reviewed last week in respect to the Pay Equity Commission. We will open that matter up for discussion, or a motion to support or whatever the committee wishes to do at this point.
Mr Owens moves to concur with the intended appointment.
Do we have any comments, any discussion on the motion?
Mr McGuinty: Just a brief comment, Mr Chair. There is nothing that appeared to me to indicate that this person was not qualified. However, as usual, given the information we obtained here at this committee, I have no assurance whatsoever that she is the best person for the job. We have no information regarding the 23 others considered. She may very well be the best person, but we do not have that assurance and we are not familiar with the details of the procedure leading up to the selection of the 23 others. So as usual, although I will be concurring in this appointment, it will be subject to the usual reservation that it is based on the extremely limited information that was presented to this committee.
Mrs Haslam: As usual, I take the opposite position, and I would like to reiterate, as I have done in all of these committee meetings, that we are not a hiring board.
Mr Bradley: That's for sure.
Mrs Haslam: We are not a corporation interviewing 15 people for a job. We are a review committee. It is our job to ascertain whether the person in front of this committee, having been put forward by the Premier's office or by the secretariat, has the necessary qualifications, has the necessary experience and whether, in our estimation, he or she fits or is suited for this position. In this case there is definitely no doubt, and I feel I must bring it to the attention of my honourable colleague that that is our job here. Our job is to say yea or nay as to whether their qualifications and experience suit this job. That is what we are to do.
Mr Bradley: Rubber stamp.
Mrs Haslam: Thank you, Mr Bradley.
The Chair: Any further discussion on the motion by Mr Owens that we concur with the appointment? All in favour of that motion? It is unanimous. Carried. Thank you very much.
Motion agreed to.
APPOINTMENTS REVIEW
Consideration of intended appointments.
LEONARD GERTLER
The Chair: The next order of business is the review of intended appointments selected by the official opposition. The first intended appointee on our agenda is Dr Leonard Gertler. Dr Gertler, would you like to come forward please, and have a seat? Welcome to the committee. Dr Gertler, would you like to make a few brief opening comments before we get into questions, or simply move right into questions?
Dr Gertler: I think I would welcome your questions.
The Chair: All right. Thank you very much. We will lead off the questioning with the official opposition.
Mr Bradley: I have only one question that I would ask the people who are appearing today that is, I think, relevant, Mr Chairman. I have confidence that the individuals who are coming before us today are all competent. They have been appointed to the Environmental Assessment Board; they are competent. I was always under the impression that the Environmental Assessment Board was besieged with work and that not only did the Environmental Appeal Board need more people but the Environmental Assessment Board needed more people. I guess I am surprised that the Environmental Assessment Board does not have more business than it has and has therefore the opportunity to loan people, or to have people cross-appointed, to the Environmental Appeal Board.
It is really probably an unfair question, unfortunately, to any of the people appearing today, because it should really go to the chair of the Environmental Assessment Board or to the minister, one of the two, as opposed to these people. But I will ask, I guess, a fairly routine question. Why is it you are going to have time to be able to be involved with the Environmental Appeal Board and the Environmental Assessment Board?
Dr Gertler: Well, very candidly, at this point, I do not know how my time will be divided between the two boards. I guess I am a candidate for the appeal board because I am responding to a request from my chairperson. What I surmise is that the two chairpeople in this case have decided it might be mutually beneficial if, for some members of the assessment board, the hearing schedules could be co-ordinated so that, in a sense, the time of those members would be optimized. That is my understanding concerning the reason behind this initiative.
Mr Bradley: Having looked at the kind of work that both boards do, I suppose there is a difference between the two, but there are some similarities as well. It is really hard to ask any questions in this regard because it is just so sensible in many ways. But do you feel, looking at the kind of work that both boards do, that people sitting on the Environmental Assessment Board can easily adjust to the Environmental Appeal Board, or do you believe the procedures that are followed and the parameters within which you work are significantly different?
Dr Gertler: I think my answer would be that this would not pose a major concern. Both are governed by the Statutory Powers Procedure Act, I understand, as far as the sort of general procedures before the hearings. As far as the issues are concerned, I think the intrinsic environmental issues are ones that we should be able to address with equal ease or otherwise.
Mr Bradley: The other question I have deals with the issue of -- and this is somewhat difficult, and, again, when people are relatively new to boards it is often unfair to ask them to make judgements. What seems to be happening with the Environmental Appeal Board -- you would know the history from being briefed on the role of the Environmental Appeal Board or you may be aware of it in any event -- the history has been that it has been a fairly non-legalistic board that has dealt in a fairly informal way with appeals over the years. That has changed now and the lawyers have by and large taken over the boards, and people are starting to appeal now because back when the control orders were not very tough, then there was really nothing to appeal and it could often be negotiated or something like that. I will not go back to the specific date, but we can all guess what it was, 26 June 1985. Now that governments actually put in control orders that mean something, we get more appeals. Are you concerned, as a person sitting on the appeal board, that you are going to be buried in legalese as opposed to logical, practical, scientific and technical argument?
Dr Gertler: I think this is an issue with both boards.
Mr Bradley: Yes, you are right.
Dr Gertler: There has been a tendency for issues that are increasingly complex to be referred to the boards -- at least, I know in the case of the Environmental Assessment Board -- for hearings. As that has occurred, there has been a tendency for parties to be represented by counsel. However, I have observed as a relatively new member of the assessment board that a good deal of attention has been given in recent months, if not longer, to ways and means of getting a good balance in the hearings between the requirements of what is sometimes called natural justice and the adversarial process, and the requirements we have to fulfil in pursuing the purposes of the acts under which we operate. So I think there has been a very earnest effort to respond in a sense to a variety of needs. Sometimes this is expressed as the search for the right balance between openness and efficiency.
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Mr Bradley: I have no further questions of Dr Gertler because I believe Dr Gertler is a man of competence, very appropriate for the job, very capable, and his long experience in the field will be very valuable to both boards. The questioning you saw directed was simply to look at potential workload and how that might be balanced. But I have full confidence in Dr Gertler.
The Chair: Thanks, Mr Bradley. Any further questions of Dr Gertler?
Mr Waters: I have one written down somewhere.
Mrs Haslam: I will ask mine, then. I must admit I am not as knowledgeable perhaps as the member for St Catharines on assessment appeals and assessment boards and things like that. However, I notice in your résumé that you are a fellow of the Canadian Institute of Planners, urban and regional planning; areas of research and teaching include settlements, Third World development, a lot of planning. I am sure that many of your colleagues view the EA clause as a bottleneck to planning. I was wondering if you could share some of your views regarding the relationship between planning and the environment assessment.
Dr Gertler: Well, I think they should perhaps be much closer than they are now as processes that proceed under different legislation. I think that when one confronts particular issues -- whether it is an issue of a change in land use from an agricultural to a residential category or an issue concerning the right directions for the extension of major services or an issue in the Niagara Escarpment area related to how one interprets the permitted uses in, let's say, the escarpment protection area -- whether one is looking at issues that may be regarded as intrinsically environmental or intrinsically land use planning issues, it seems to me that in either case one has to bring to bear environmental considerations as well as considerations of economics and other criteria.
So I think there is a need for a closer connection between these two aspects. I think that connection does not now proceed readily because each legislation, each set of legislations, has its own processes. They come together, I guess, in some special arrangements such as the consolidated hearings board, which is explicitly designed to bring these things together. But otherwise, I think it would be much more beneficial if the planning considerations and the environmental considerations could be considered early in their respective processes, before they become contentious and adversarial issues.
Mr Waters: There has been some discussion about the greening of the Planning Act, and I just wanted your opinion on what impact you perceive this having on the environmental process.
Dr Gertler: At the moment, of course, for most of us that is just a slogan and I am not quite sure what it means. But I can surmise that it means the Planning Act might be reshaped to accommodate environmental along with other considerations in decisions under the Planning Act. At present, the way planning is defined in the Planning Act, that is ambiguous. It is not at all clear that environmental issues are within the scope of the Planning Act, and I presume the greening of the Planning Act would bc an attempt to broaden the scope of the act in this way.
The Chair: Anything further? Doctor, a fairly easy ride for you today. Thank you for appearing before us. We appreciate it and wish you well.
Dr Gertler: Thank you very much.
ALAN LEVY
The Chair: The next intended appointee, Alan Levy. Mr Levy, welcome to the committee. I will provide you the opportunity to make a few brief comments, if you wish, or we can move right into questions.
Mr Levy: Well, like Dr Gertler, I am also a volunteer, so to speak, for the appeal board, because I am currently sitting on the assessment board.
I can shed a bit of light on Mr Bradley's concern about the burden or the load in terms of scheduling when the two GTA landfill hearings were suspended. That affected all three of the candidates before you today. In the short term, we saw some slack in our schedule potentially until other matters get booked in to fill their place. That is how it came to be, as I understand it. Through discussions with the chair of the appeal board, it was seen as ideal, since their hearings tend to be reasonably short, that we fill in any holes of our schedule, certainly in the short run, and help that board out until our assessment board schedule gets filled back in. Those are my only comments.
The Chair: Thank you very much. With that explanation, we will begin with the official opposition.
Mr McGuinty: Do you see any potential for conflict, or can you imagine any arising from your acting under two different hats here?
Mr Levy: I do not think so because, first of all, I do not particularly envisage cases where there would be parties first coming to the assessment board for adjudication and then over to the appeal boards so that we would have conflicts where I might actually be on parallel panels with the same parties. So I do not see that problem.
As I understand the comparison, basically at the assessment board we review projects before they are created, and at the appeal board there are control orders and what not for existing matters, so it is looking at it from after the fact.
From my own view, it would complement my perspective to see problems as they develop in practice as opposed to, on the assessment board, just speculating in terms of the future which problems may arise. I do not see the conflict.
Mr McGuinty: Your position now with the appeal board, I guess, is going to be part-time. The assessment board is full-time and this will be part-time. Tell me, how is your compensation going to work? Do you continue to receive the full-time compensation for the assessment board?
Mr Levy: That is right. When I said volunteer, I meant there is no compensation for any work we do on the appeal board. I suppose if you turn us down, that will be fine.
Mr McGuinty: Let me get this straight --
Mr Levy: My understanding is that it is understood between the two chairs that my main duties are with the assessment board and it is to the extent that schedule permits that I am slotted into the other one.
Mr McGuinty: So you will not be receiving any remuneration for your work with the appeal board?
Mr Levy: That is correct.
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Mr McGuinty: That is very interesting.
Mr Levy: I am open, however --
Mr Bradley: That kind of stops you in your tracks. That looks like a good line of questioning.
Mr McGuinty: I have been surprised, but never pleasantly. Thank you very much. I have no further questions.
Mr Bradley: I really do not have any further questions as well, because the questions have been asked. I cannot speak for everybody on the committee, but I think the main concern is the balance of time. If indeed that time is available, it makes sense that people who are capable of doing hearings and similar work, as Dr Gertler talked about -- it has some differences, but similar work -- it seems sensible.
Once again, Mr Levy is an extremely competent person sitting on the Environmental Assessment Board. I see no problem with his sitting on the appeal board, and any questions we would have about the workloads of both we can direct to the Minister of the Environment, I guess, rather than the members of the board.
The Chair: Anything further from members? Mr Levy, thank you very much, and we wish you well with your added responsibilities.
Mr McGuinty: Unpaid.
The Chair: Unpaid, yes.
JAMES ROBB
The Chair: Our final intended appointee is James Robb. Mr Robb, would you come forward, please? Welcome, Mr Robb. We will provide you with the same opportunity if you wish to say something.
Mr Robb: I think I am at the board's pleasure as far as questioning.
Mr Grandmaître: Do you agree with your colleagues? Anything you would like to add or --
Mr Robb: No, I think that Alan and Len have outlined the understanding we had, that we would be available to the appeal board if there were any spaces in our other hearing workload with the Environmental Assessment Board. It would just be a matter of flexibility between the two boards. If there were some short hearings, if we had some space between a preliminary hearing and the main hearing or something of that nature, we could help out with the appeal board's workload.
Mr Grandmaître: I find it very strange, Mr Chairman, that the two boards -- usually boards do not get along. These two boards are very different. Continue your good work.
Mr Bradley: My question for Mr Robb is whether he is still going to have time, working on both the Environmental Assessment Board and the Environmental Appeal Board, to walk through the Rouge Valley.
Mr Robb: I do not get out there as often as I would like, but I try to. One of the ways I relax is to get out and walk. One of the places I like to go is the Rouge.
Mr Bradley: Mr Chairman, some of the newer members of the Legislature may or may not know that Mr Robb led the charge. He would not want to have full credit, but he was the person who probably had the most influence on a government decision that was made to save the Rouge Valley from a highway and from other potential uses, and it is rather interesting that people like that are now sitting on boards to make judgements. Before, we might not have seen that happen.
I certainly have full confidence in Mr Robb, and again, I think this is a reasonable move for the minister. The chair of the appeal board and the chair of the assessment board are present in the gallery today. If they both believe this is appropriate, and the minister believes it is appropriate, I think it is a sensible use of the time of people. It saves some money, as we have just heard, as well. It gives people a wider kind of experience, sitting on both boards, and it broadens their knowledge of the issues before us. So it is very sensible, I think, that they would sit on both.
Mr Wiseman: I see in your background -- we know each other, honey; we fought. Do not fall all over the place together.
Are you aware that AMO is bringing forward new guidelines on protection of trees? Have you seen any of that?
Mr Robb: I have not seen it, no. I have heard that there is work on a trees act and various legislation, but I have yet to see it.
Mr Wiseman: I have a copy of it.
I guess the other question is -- I do not know if I should even ask this. Apparently this morning there is a controversy brewing in Toronto about the chopping down of trees in front of the Rogers Cable TV. The guy who owns Rogers Cable TV wants to chop down 18 very old trees in front of his house, and he seems, if I heard it right, to have been given the go-ahead on that. Is this something that might come before your board as an assessment appeal?
Mr Robb: No. I would think that would be unlikely, given the past cases that I have reviewed that have come before the Environmental Appeal Board. There are usually control orders issued by the Ministry of the Environment regarding emissions into the environment, or in the past there have been smaller cases, I understand, dealing with permits for septic beds and that type of thing.
The Chair: Anything further? Thank you, Mr Robb, for appearing here this morning. We appreciate it and we wish you well.
Mr Robb: Thank you very much.
The Chair: Mr Waters, do you have a question?
Mr Waters: Before we adjourn, it seems we are all in favour of these three appointments. I was just wondering if we could waive the rules and do the vote now. Then we could line up new business.
The Chair: Mr Waters has made a request that we can accommodate if we have unanimous consent to concur with the intended appointments. Do we have unanimous consent to move on that today? Do we have a motion? I require a motion to concur.
Mr Waters: I so move.
Mr Stockwell: We require unanimous agreement?
The Chair: Yes.
Mr Stockwell: No, I do not.
The Chair: We require unanimous consent.
Okay, before we adjourn, I want to advise members of --
Mr Silipo: I am sorry, Mr Chair, but even though there is not consent, can I just ask: Do you wish to have the matter dealt with next week as we had scheduled or do we deal with it today?
Mr Stockwell: Yes, in the normal process.
Mr Silipo: Okay, fine.
The Chair: The subcommittee met this week to discuss the question of additional sitting time, and where there was no consensus between the three parties, the decision was made to, if you will, throw it back in the laps of the House leaders and whips. It is the feeling that if the government feels that the added sitting time of this committee is necessary to fulfil the expanded mandate, they are going to find some way to accommodate the wishes of all three parties. So we really placed the matter back in their hands and hopefully they will be able to accommodate all of us within the next week or two.
Anything additional before we adjourn? Meeting adjourned.
The committee adjourned at 1029.