HANSARD
Printed and Published by Nova Scotia Hansard Reporting Services
STANDING COMMITTEE ON HUMAN RESOURCES
Mr. Ronald Chisholm (Chairman)
Mr. Brooke Taylor
Mr. Cecil O'Donnell
Mr. Frank Corbett
Mr. Howard Epstein
Ms. Joan Massey
Mr. Russell MacKinnon
Mr. Leo Glavine
Ms. Diana Whalen
[Mr. Leo Glavine was replaced by Mr. Daniel Graham.]
In Attendance:
Mrs. Darlene Henry
Legislative Committee Clerk
Mr. Gordon Hebb
Legislative Counsel
WITNESSES
Nova Scotia Office of the Ombudsman
Mr. Dwight Bishop
Ombudsman
Ms. Julie Vandervoort
Investigator
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HALIFAX, TUESDAY, FEBRUARY 1, 2005
STANDING COMMITTEE ON HUMAN RESOURCES
9:00 A.M.
CHAIRMAN
Mr. Ronald Chisholm
MR. CHAIRMAN: Good morning, everyone. We will call the meeting of the Standing Committee on Human Resources to order. Today we have the Office of the Ombudsman with us. We have Mr. Dwight Bishop, who is the Ombudsman, and we also have Ms. Julie Vandervoort, Investigator. So how we usually conduct our meetings is that we allow for the presenters to give us 10 to 15 minutes of presentation and then we open the floor to questions from the members of the committee. So I guess the first thing we will do is maybe go around the table and ask each of our members to introduce themselves, if they would, starting with Ms. Massey.
[The committee members introduced themselves.]
MR. CHAIRMAN: We will turn the presentation over to you, Mr. Bishop.
MR. DWIGHT BISHOP: Thank you, Mr. Chairman, committee members and Clerk Henry, for extending to us the opportunity to appear this morning. I have with me Julie Vandervoort who is our investigator in this area so she is more or less a specialist in this area.
With your permission, Mr. Chairman, I propose to give you a brief outline of our role and responsibilities as set out through the Civil Service Disclosure of Wrongdoing Regulations and I think after that you may have some questions but I think that might be an approach.
MR. CHAIRMAN: Okay, that's fine.
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MR. BISHOP: The Civil Service Disclosure of Wrongdoing Regulations, I'm sure you are aware, are under the Civil Service Act. They really set out or assign certain responsibilities to our office, the Office of the Ombudsman. I think if you look at the regulations, you think about them, from an Ombudsman standpoint, there is really an investigative role and a reporting role. The reporting role really concerns reporting on investigations, reporting if you choose to make recommendations and also an annual report. It's a fairly comprehensive piece of legislation when you look at it from our standpoint from what we are to do and things of that nature.
I think embedded in that investigative and reporting role is a concept of independence and confidentiality. When you look at Section 24, you sort of draw that out of it. From an investigative role, there is a threshold requirement that is embedded again in the Act. It is usually used as the term "reasonableness". That is to invoke our role and responsibilities so when we look at the investigative role, we look at a threshold that must be met.
From an employee standpoint, it contemplates invoking the role of the Ombudsman. If the matter will not be appropriately addressed, in other words, if the employee feels reasonableness is present there that the matter will not be appropriately addressed, they can refer it to the Ombudsman. Also, if the employee feels that it would not be appropriate to disclose because of the subject matter of the issue. Again, reasonableness is present there.
A deputy head of a department or agency can also refer it to us, either the disclosure or report which he has received. So there are really two avenues when I look at the regulations that it can come up through us: one from the employee and one from the deputy head. An employee, again, if he or she feels that it would not be appropriately addressed or if he or she feels it would not be appropriate to disclose to their superiors.
When you look at the regulations, although it struck me, it says the Ombudsman must investigate. It doesn't have any discretion in the matter. I must investigate it unless criteria set out in Section 11 - and those criteria I will allude to a little later - but it places a responsibility directly on the Ombudsman to deal with these matters.
Given the nature of the regulations, we have developed what we call a protocol or an assessment package. It's an in-house approach. We sort of boiled down the regulations and said, okay, what must we do? There are a lot of checks and balances in there for reporting, et cetera, so we thought we would boil those down. What we do is we receive a call, for example, from somebody, from employees complaining. What we really do is we talk to the employee on the phone for a while. We will walk that person through the processes set out in the regulations and it is usually not me. For example, it would be Julie who does that. At the same time, we would offer to sit and meet with that person or meet face to face with the person because it is rather sensitive and it is a trying issue, I would think, for a person if they
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come forward, so we thought it would be best if we sit down and have a chat with them. So that is sort of our approach from an investigative standpoint.
I think when we look at the investigative standpoint, too, the regulations really contemplate that the investigation be carried out with independence, confidentiality and competence. I think the expertise we develop, or what's required for the investigations under the Ombudsman Act, really are transferrable to the disclosure area. What we did to sort of come up to speed on this, we sent Julie to Ottawa for a few days and she was there and she met with the Public Service Integrity Office in Ottawa. They have about eight people and their authorities are similar in most respects. There are some differences but they are fairly similar to the regulations here in Nova Scotia.
I would like to move now briefly into the reporting side, if I may. The regulations create certain obligations for the Ombudsman in terms of reporting. On the investigative side, there are notification requirements and we issue an investigation report. Also, if we make recommendations - and I find this is interesting in the regulations - if we find a wrongdoing, we must make recommendations. There is notification as well but we must make recommendations. It doesn't say we should or anything, it says we must. There is also a reporting obligation at the year end, three months after the year end there is an annual report. We submit a report to the commissioner. We set out a number of general inquiries, a number of disclosures, things like that. Really it is set out in the regulations what our obligations are there but there is a fair amount of reporting.
I think a thing to bear in mind, too, when I look at the regulations, the process established for reporting disclosure, if you look at Section 24, it's really covered in confidentiality. The regulations tell me, as Ombudsman, that I must operate, when I'm dealing with matters of disclosure, in a very confidential manner. It also tells me that there are reporting processes and procedures in place at year end to report many things. So it sort of gives me, I guess you would say, my terms of reference or marching orders, I guess.
I think when you sum it up, when I look again at the regulations or investigative responsibility or reporting responsibility, I think it creates one part of our role there, I think it creates an external accountability and independence. The department, also, when you look at the process, has an opportunity to first address the matter. I mentioned reasonableness earlier. How we would look at reasonableness - and the reasonableness issue has been around a long time and courts apply it and struggle with it - but when we look at reasonableness or reasonable we really look at it as a balancing of the view from both the employee's perspective and objectively in terms of the evidence before us just to support that perspective. So we look at the employee perspective, then we look at the information and see does that support it.
Also, I note when I read the regulations that reprisal for disclosures is in itself wrongdoing. Again, I would emphasize what I mentioned before that if the Ombudsman
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finds wrongdoing, then we're obligated and must make recommendations. Those are my introductory comments. I trust I've been fairly clear on it. When I look at the regulations, I think that captures it from our perspective.
[9:15 a.m.]
MR. CHAIRMAN: Thank you, Mr. Bishop. We have Ms. Massey down as our first questioner.
MS. JOAN MASSEY: I'm really interested - and I know you probably can't make comments on the actual specific case, but - the case of Baltzer Bog, where your office has investigated that. In your little presentation, you were talking about if there is any wrongdoing, then you must make recommendations, but in the case of a situation where the recommendations have not been made public, how does the general public, how do we find out what, if any, recommendations are made in a case like that? When does the public ever get to know if recommendations were indeed suggested, and if they were suggested, were they implemented? I'm just wondering if you can comment.
MR. BISHOP: When we make our recommendations, we make them to the commissioner. As noted in the regulations, there's an obligation or a responsibility for the commissioner to make a report. I would think that would be the process, but my obligation would be to make a report to the commissioner.
MS. MASSEY: I know you can't comment on that case, but when it goes along that process, is there a timeline, when the commissioner would have to make anything public?
MR. BISHOP: When we make a recommendation, then if we feel it's appropriate, we can place a timeline and ask them to respond to us in terms of their implementation.
MS. MASSEY: So if you did place a timeline, again just getting back to the input from the general public, and specifically in cases around different government departments and perhaps either they're not doing the job 100 per cent or something needs to be improved or maybe the job is being done 100 per cent, you're setting a timeline, but then again we don't know what the timeline is, so we're sort of still kept in the dark. I guess that's what people might feel, that we haven't seen your report, your recommendations, and they've gone to the commissioner and we don't get to see that. There's not really a part in there for the general public to do their sort of checks and balances on a specific case or an issue, is there? Do you feel there is?
MR. BISHOP: I would only emphasize that if we make a recommendation, there's a process to follow, the regulations set out that process. We do have the option and, by the way, we do have our other responsibilities, too, to ask for the department to respond in terms of how they intend to implement from an Ombudsman's perspective. Here the regulations
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are set out, and I could probably refer to them if I had a moment here. I think it's Regulation 13(2)(b), "may request notification, within a specified time, of any steps taken to give effect to the recommendations made under clause (a)."
You've alluded to the fact, well, what timeline would a person use, I really don't know. It would depend in large measure on the nature of the recommendation. Again, it would have to be something within a reasonable perspective, but for me to identify specifics, I think it probably wouldn't be appropriate at this time.
MS. MASSEY: Thank you. I'll just leave it at that.
MR. CHAIRMAN: Mr. Graham, 10 minutes.
MR. DANIEL GRAHAM: Thank you both for coming here this morning. I have three matters that I'd like to raise. If I don't get through them all, then I'm happy to perhaps give others an opportunity, and if there's time later on, I'll come back to those. The first relates to the actual provisions and what terms need to be exhausted in order to get to the heart of this problem; the 12-month provision with respect to reporting and the requirement that it be within 12 months; and the third relates to the language that's used in the appendices that are attached to the material or the disclosure of wrongdoing policy statement in Chapter 20 of the Human Resources Management Manual. I trust, perhaps, Ms. Vandervoort that you have a copy of that manual?
MS. JULIE VANDERVOORT: Yes.
MR. GRAHAM: Okay. I'm also going to, I think, rely somewhat on your experience, Mr. Bishop, your lifetime experience and professional experience as the top RCMP officer for Nova Scotia, somebody with extensive experience in the field of criminal investigation. Perhaps if I could just preface my remarks with a few things: we have a three-tiered process presently, where somebody is obliged to report to their supervisor unless they feel it's inappropriate; if it is, then they're obliged to report to the deputy head unless they feel that perhaps it's inappropriate, and only in those circumstances do they look at referring the matter to the Ombudsman. All of that is predicated on trust, somebody's trust that the matter will be taken care of appropriately. I would point out, then, in an extensive survey done by the province, it was clear that less than half, or 46 per cent, of those who responded are not confident that they can report their concerns to their superiors without some form of reprisal. So it places an enormous potential onus on you, at your end, to deal with these matters.
Now in Regulation 6(2)(a) of the regulations that were passed this past year, it says that ". . . an employee may make a disclosure of a wrongdoing other than as provided for in subsection (1) if they believe on reasonable grounds that (a) it is necessary to do so to prevent imminent and serious danger to the life, health or safety of a person;" So you don't have to go through the three-step process, you don't have to report to your supervisor, your deputy
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head nor the Ombudsman if you feel that it is necessary to prevent imminent and serious danger to the life, health or safety of a person.
I have remarked repeatedly that that is far too narrow an escape clause, and the first concern that Nova Scotians might have about this is that it prevents the possibility for somebody to report wrongdoing, criminal activity perhaps, to the police and not have some fear of reprisal at the other end. When I first read that I thought that perhaps I'm mistaken about the intention, and surely there is a possibility to report wrongdoing to the police. I know that the provincial government has sought an opinion on this. I haven't seen the opinion, I've seen a summary of what they believe.
I would refer to, again, Chapter 20 of the Human Resources Management Manual, Disclosure of Wrongdoing, Page 20-3, where it sets out whether or not one is being paranoid about whether you go to the police in circumstances, for example, where you find that there is a fraud being committed by someone. Are you entitled to go outside this process if you feel that there is a fraud? It says that, "An employee may make a disclosure of wrongdoing to the police department or police agency that the employee reasonably believes can address imminent and serious danger, only if they believe on reasonable grounds that it is necessary to do so to prevent imminent and serious danger to the life, health or safety of a person;"
Now the concern that one obviously must have when they look at that is that there are many things that could be reported, you would agree, to the police department, and should be reported to the police department, that don't involve an imminent and serious danger to the life, health or safety of a person. So, is it not fair to say, and I appreciate that it's not your role to make policy for the Province of Nova Scotia, but surely you would agree, in your capacity as a former police officer, that that window is far too narrow, and that it should be opened up?
MR. BISHOP: Well, at the end of your comments you mentioned it's probably not my role to discuss policy and expand upon policy, I'm hesitant to make an observation on that. I just simply will get it and it sets out an avenue which it really takes, as you mentioned earlier, people outside the normal reporting process and they can go to their local police or the police they feel is appropriate. And again, it says, ". . . to prevent imminent and serious danger to the life, health or safety . . .", so there's an emergency, something along that line. Other than that, sir, I'm really not sure what I can comment on.
MR. GRAHAM: You would agree - and my recollection, Mr. Bishop, is that you also have a law degree - that when one looks at that language and you know that investigations happen, they would have happened under your watch with respect to possible frauds in the private sector. You would have a whole section that would be looking at possible fraud in the workplace that is part of the public sector. People raise complaints from time to time. It would appear from, particularly, the language in the policy manual that sets out that you can only make a complaint to the police if you're looking ". . . to prevent imminent and serious
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danger to the life, health or safety of a person;", so it shuts off a valve for a potential complaint to the police for a fraud.
MR. BISHOP: It's certainly limited in its scope. Whether it shuts that valve off is a matter, I suspect, of interpretation. I would add that I note in the issues for us to consider is whether another department or agency should be looking at certain things. If it was a fraud, for example, it may come to us first or come up through the line but that aspect would have to be referred and looked at appropriately by the police service, I would suggest to you.
MR. GRAHAM: Let me just flip to, again, your experience in investigating matters. As the top RCMP officer in Nova Scotia, you would have been familiar with disclosures of criminal activity and wrongdoing that happened well after the actual event, after the actus reus, after something actually transpired. It may be 12 months, it may be 13 months, it may be three years, it may be 30 years in some circumstances before wrongdoing is appropriately brought before the courts and allegations are laid. It often has to do with power imbalances that exist between the accused and the alleged victim in those circumstances.
Those power imbalances are often most intense in a workplace situation. I would suggest - and I'm just asking for your comment with respect to this - that given that power imbalance circumstances are often the trigger for people not disclosing, in what would otherwise be considered a timely fashion, and workplace situations are particularly prone to power imbalances that the requirement that a wrongdoing be disclosed within the 12-month period is unnecessarily strict and should be relaxed to allow for those circumstances where a relationship may even exist between the person who is alleging wrongdoing and the person who did the wrong.
MR. BISHOP: I would concur with you that usually there are conflicts between the parties and with major fraud or other criminal activity, in itself, will quite often bring relationship issues into play. Whether the 12-month timeline is adequate, I don't know, I think time will tell us that, experience may tell us that. Often these go on, many frauds, et cetera - I'm talking very generally now - they're not disclosed early, they've transpired for some time before they become known and before they come forward. So it may be an area to be examined but you know, maybe the commissioner will look at that.
[9:30 a.m.]
MR. CHAIRMAN: Mr. Taylor.
MR. BROOKE TAYLOR: Mr. Bishop, where federal, provincial and municipal services overlap and there could be a potential complaint about that service - I realize it would depend on the nature but let's talk then about RCMP services. If, in fact, a community and the public were concerned about the RCMP plans for that particular service relative to redeployment - now I'm talking about the practices and I won't get into the specifics but -
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I'm sure that you receive many complaints and sometimes would be able to offer counsel or at least advice to the complainant, if not your office then where the complaint is, sort of a tripartite-type service as far as government is concerned, would you and have you looked into the RCMP, in fact?
MR. BISHOP: Under these regulations?
MR. TAYLOR: Yes.
MR. BISHOP: I view the regulations as dealing with provincial government employees, not municipal government employees, and also not federal government employees. I think their scope is really provincial employees. In fact, the issue came up to me some time ago when I was speaking to some mayors and wardens in the Valley. They asked me if the regulations applied to them. I said I didn't believe they did and they might have asked the question, do you think they should have, and I said it's not my call. The question you asked, if I understand it correctly, is the regulations, I don't believe, would grasp unless you're a provincial employee. From a municipal standpoint, many of those services are provided under a municipal contract so my sense is probably it would not, no.
We've been kind of pleased in our other duties under the Ombudsman Act in that the RCMP has agreed to allow us to visit their cells and things like that for our youth program, which I found kind of beneficial.
MR. TAYLOR: How do you communicate the role and service of your office to the public? How do you communicate the role and service of the Ombudsman to the public?
MR. BISHOP: We've been talking about that lately. Is that under disclosure or the general office? Maybe I'll talk first in terms of generally, our office developed a communications strategy and we're trying to be more proactive. We have pamphlets and things, we're going out and visiting, we're trying to be proactive, particularly in the youth area and we're trying to develop a proactive seniors' program. I think our youth program has been very good because I think we've developed confidence. For example, we visit all the correctional facilities, the high-risk facility in Truro, et cetera, and pretty soon group homes. We have a regular presence there and there's a comfort level, I believe, that develops between not only the youth, but also people who work there.
We receive several hundred, maybe three hundred, complaints a year from youth in those areas, we just want to expand it more. We've been out talking to seniors every now and then and the papers may talk to us but our communications are really a conservative communication, not a high-profile but conservative.
In terms of the disclosure, we tell people in our presentations that we have a role and responsibility under disclosure. A few weeks ago I mentioned that I had the opportunity to
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speak to the Order of Good Cheer society down in Bridgetown. I didn't realize there would be 150 people there, that's quite a large group. We're out more like that.
I think our annual report is another area. We struggle with that because I believe we have an important role, it's an oversight and accountability role but at the same time, it's not a role that needs to be in the papers and everything. The Ombudsman's role and in this one again, there's a confidentiality presence there too, so there's not too much we can say. I would hope in time, as they see us do our investigations and things, that they have a high comfort level in our independence and competence. Did I answer your question? I'm not sure I did on that one, sir.
MR. TAYLOR: Well, I think, in a roundabout way. I'm just wondering, to get to the formal complaint process, obviously an assessment is carried out, in terms of time generally, because we can't zero in on specifics, are you satisfied that you're meeting the complainant's expectations in most cases, in terms of responding to the complaint in a time frame that seems to be fairly reasonable?
MR. BISHOP: From our response?
MR. TAYLOR: Yes, from your response.
MR. BISHOP: I believe, within the office itself, generally, from an Ombudsman's standpoint, I believe we're responding in a reasonable fashion. We've reduced most of our old files, we have very few that are older than a year now. We've really reduced most older files. Timelines are improved. From the disclosure standpoint, we sent Julie to be trained. I think our approach is reasonable. We're trying to become knowledgeable. If we receive a complaint, I think it's our obligation to go out and work with the person. It's a trying time for someone to bring information like this forward.
MR. TAYLOR: Can I just be hypothetical for a moment? I have a complaint today about the operational supervisor with the Department of Transportation at a depot in Nova Scotia. How long, generally, does it take the Ombudsman's Office to deal with that complaint, by me, the Department of Transportation employee, about my supervisor?
MR. BISHOP: I can mention to you what the general stats are within our office. Sixty per cent of the calls we receive are really dealt within in the first short period of time, within the first week. A lot of those are redirected. They may call us when they have a complaint with the Ford Motor Company or something that has nothing to do with us. They're dealt with. The rest are dealt with - a large percentage are dealt with within the first month. There might be 35 in that area that are dealt with over the next year. It used to be over the next two or three years, and we've reduced that to the next year. Disclosure, we're still at the very young stage. Disclosure would be given priority in our office. I view it as a priority issue, and it has to be dealt with as quickly as possible.
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MR. TAYLOR: How many complaints have you received from government employees in the last year?
MR. BISHOP: In terms of disclosure?
MR. TAYLOR: Yes, sure.
MR. BISHOP: From a disclosure standpoint, if I could bring your attention to Section 24 of the regulations, it really limits what I can say in that area. It tells me to do an annual report, and in that report to set out how many assessments we've done, how many complaints we've received and things like that. I feel that's sort of a comprehensive way for us to make a report. When I look at Section 24, it really says, Mr. Ombudsman, do your work and keep your mouth quiet. I don't mean that in a negative sense at all, but it really says that when you receive a complaint, treat it with the utmost sensitivity and confidentiality, and at the end of the year, also, make a report to the commissioner, setting out how many calls you've received, how many investigations you've received, how many recommendations you've made, and things of that nature. That's my route to make a public statement.
MR. TAYLOR: You're being very careful, Mr. Ombudsman. I'll pass.
MR. CHAIRMAN: Mr. MacKinnon.
MR. RUSSELL MACKINNON: Mr. Chairman, I'm a little surprised at the Ombudsman's comments with regard to Section 24, because I'm getting the sense that the Ombudsman doesn't even want to indicate how many complaints from the provincial Civil Service he's received in the last year. Am I interpreting that correctly? It appears to me . . .
MR. BISHOP: I've been blessed with not the best hearing in the word.
MR. MACKINNON: Sometimes that's an asset, in government. On a serious note, my sense is, through you, Mr. Chairman, that the Ombudsman does not want to comment as to how many complaints he's received from the Civil Service in the last year.
MR. BISHOP: Since June, I think it was June that the Act came into effect . . .
MS. VANDERVOORT: September 16th.
MR. BISHOP: And since that period of time - I've wondered about this, I've raised the issue. We've talked to Justice on the issue. Really, we're left with the view that Section 24 creates the reporting responsibility for us. If I may just read through it, the Ombudsman must "(a) not publically [sic] disclose any information that comes to the Ombudsman's knowledge in the performance of the duties under these regulations; and (b) to the extent possible, protect the identity of persons involved . . ." Then if you look to another provision
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in the Act, it mentions what our reporting obligations are, and we set out many things we report to the commissioner. When I read those two together, it's rather comprehensive.
MR. MACKINNON: I don't agree, Mr. Chairman. I don't agree at all. We're not asking for names; we're asking for statistics. It appears to me that you're not providing the statistical information we're asking for, to either myself or the member for Colchester-Musquodoboit Valley. My question is, why not?
MR. BISHOP: Well, I anticipated the question, so I had asked Justice for advice. Their advice was that the provisions are really coached in very broad terms from a confidential standpoint, I expect because they feel that it might be taken out of context, it could be taken out of context. I can mention to you we've received very few at this point in time.
MR. MACKINNON: That's a relative term, Mr. Chairman. What's few? Is it 100, 200? Is it 10 per cent of the Civil Service?
MR. BISHOP: Well, again, I would prefer not to go into that because of my reading of Section 24.
MR. MACKINNON: Perhaps, maybe what we'll do, Mr. Chairman, through the committee, is we'll direct the Ombudsman to provide that information through a motion or something, because we're not asking for any confidential information, we're asking for what is quite obviously statistical information to find out how effective these new regulations are. We've heard presenters before this committee, on a previous day, indicate that they are not satisfied, that these regulations are too restrictive.
It appears to me, through you, Mr. Chairman, that the Ombudsman's comments are indicative of the office being somewhat hamstrung by a government directive and/or is somehow falling into the profile that many individuals have for a criticism, and that is that the Ombudsman's Office is a toothless tiger. I would ask how the Ombudsman would respond to both those observations?
MR. BISHOP: If I may just have a minute, please. If I could just draw your attention to Section 16 of the regulations, "The Ombudsman must, within 3 months after the end of each fiscal year, submit an annual report to the Commissioner setting out, for that fiscal year (a) the number of general inquiries relating to these regulations; (b) the number of disclosures received; (c) the number of investigations commenced; (d) the number of recommendations made pursuant to clause 13(2)(a); (e) whether there are any systemic problems that give rise to wrongdoings; and (f) any recommendations for improvement that the Ombudsman considers appropriate, and any additional matter that the Ombudsman considers necessary."
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I only wish to say that when I read that provision, and then I read the confidential provision, it tells me that the regulations have established a process for the Ombudsman to speak.
MR. MACKINNON: Mr. Chairman, with that, it's obvious that unlike the Freedom of Information officer, Mr. Darce Fardy, who had no compunction or no hesitation about making observations about the inadequacy or the pitfalls of that process, whether it be related to fees or what, the Ombudsman here is somehow refusing to give us some direction that I feel is important for members of this committee and members of the Legislature to be able to determine the effectiveness of not only the new regulations but the process in general that the government has embarked on. We've received, all members of the committee, a presentation by employees of the provincial Public Service, providing considerable criticism of this process and, quite frankly, I don't know what to believe at the end of the day.
[9:45 a.m.]
I know we have the Occupational Health and Safety Act and there are some provisions in there and I relied on that but we're not getting any direction on this particular issue that I feel this committee needs to make a final assessment. My question is, why not? Has he been given direction from the Department of Justice not to make any comment or recommendations, or just to speak specifically to the regulations at hand?
MR. BISHOP: If I may answer, I haven't been given direction by another department, including the Department of Justice, I have sought their advice. Also, we have the authority to seek independent advice outside.
MR. MACKINNON: Have you done that?
MR. BISHOP: I'm just troubled by the fact that when I read Sections 16 and 24, I wish to comply with the regulations fully. When I read those two it tells me . . .
MR. MACKINNON: We have a problem with the regulations.
MR. BISHOP: . . . to be very careful what I say and to follow this process for reporting. In terms of assessments and things of that nature, you're to report at the year end to the commissioner and then the commissioner has certain regulations to create that. I can tell you at the present time, we have no active investigations.
MR. MACKINNON: Mr. Chairman, I need clarity here. Is the Ombudsman telling members of the committee that he finds a conflict in the two different sections - Section 16 and Section 24 - which inhibits or limits his ability to exercise the duties of his office?
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MR. BISHOP: No, I don't see there's a conflict which limits my ability. It causes me some difficulty here to answer your specific question, but in terms of carrying out my duties and responsibilities I do not see a conflict there. It tells me at the end of the year where to report, to the commissioner, on what we have done for the year. My issue is that it tells me when and what I'm to report on and seems rather comprehensive and actually has a provision in it that says you can report on other things if you feel it's appropriate. When it says that, I'm not sure if I should be reporting here on that particular issue.
MR. MACKINNON: What the Ombudsman has indicated is that he finds conflict between Section 16 and Section 24. How can that be clarity if you're finding that two different sections of the regulations or the policy give you two different directions to go? There's not consistency.
MR. BISHOP: When I read the two, it tells me that it has created a reporting protocol for the Ombudsman's Office and it appears to be rather complete. The issue is, does that prevent me from answering a question that you have raised here because you're not in the reporting relationship as set out in these regulations? That's an issue. To that extent, if it's appropriate for me to answer, then I answer you here on that issue. If that's comprehensive and I'm unable to answer you, and maybe it should be amended - or maybe I have misinterpreted it - my sense is it is rather comprehensive.
Your question is a very basic question, you want to know how many inquiries we've received, how many assessments we've done and investigations. When I originally thought about it I said, well, that's not a big deal, I should be able to tell you. Then I looked at the regulations and they said, Mr. Ombudsman, when you speak, speak this way, speak through these people, speak through your report, don't do it halfway through the year. I don't know why they said that, other than it may mean - well, we certainly would never identify the names of the individual and all of those things, they've never come up and you've never asked that here. To that extent, it would be good if that was clarified.
MR. MACKINNON: One final short snapper . . .
MR. CHAIRMAN: Your time is up.
MR. MACKINNON: Thirty seconds?
MR. CHAIRMAN: There will be another round. Mr. Epstein.
MR. BISHOP: Would it be okay if I asked Julie to shed some light. Maybe her mind is more focused than mine this morning.
MS. VANDERVOORT: My comment is very short, it's just to put it into a little bit of context. It has come up twice now, how many complaints have we had in the last year.
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These regulations came into force September 16th so we're really only looking at four and a half months, there hasn't been a year and that's why we don't have an annual report yet.
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The only jurisdiction in Canada that has any real experience in this area is the Public Service Integrity Office in Ottawa and they've been dealing with Treasury Board policy, not
legislation, but it is very similar to the regulations we have now. So they are in a position after almost four years, they would be in a position to tell you at any given time how many investigations are underway, how many inquiries, how many assessments, but they don't, in fact, give out that information. If they get inquiries from the media, from union members, or from anywhere, they refer the caller back to information that is already in the public domain in the form of the annual report. The reason for that is that the annual report provides a context for those numbers and a context for those statistics. That is the only experience we have to draw on so far.
MR. HOWARD EPSTEIN: To both of our guests and witnesses today, I would like to support the point made by my colleague, the member for Cape Breton West, and I would like to suggest that you rethink the interpretation you have of the sections of the regulations. I think the best interpretation that you might have is that the regulations suggest to you that you should not necessarily voluntarily speak publicly yourself, outside the ambit of your annual report. I think you're quite right in saying that the regulations tell you how normally you would address reporting to the public and to the Legislature on what it is that you do.
On the other hand, I would invite you to contemplate the following situation.
Suppose somehow this became an issue in a court case or a public inquiry and you were subpoenaed to come to court or before a public inquiry and you were asked that question, how many complaints have you had from a civil servant so far this year. I don't think you could in response say, oh look, we have regulations that tell us that we only report once a year, I can't answer your question. In front of a committee of the Legislature you're in exactly the same position. That is to say, you are not voluntarily speaking publicly, you're not on your own motion coming forward and making a public release or responding to a press question or responding to a question from the NSGEU or anyone else. You are, however, being asked by members of the Legislature, who have a special status - the special status we have is that we are the lawmakers - and any committee of the Legislature is entitled to ask at any time, any of these questions.
If we were to go even further and ask you for the names of people, the appropriate response for you is to say, I don't think it's a good idea to speak publicly about this, can we go in camera. Even then we might not press the issue but you are ultimately, I think you would find, reliant on the good sense of the members of the Legislature, but I don't think you're entitled to refuse to answer. However, you seem to have asked for some legal advice from the Department of Justice, I don't know whether you asked specifically about what happens when you go in front of a Legislature committee. If you didn't ask that, I think you might want to go back and ask it. I'm not going to press today and insist that you answer the question, or suggest that we're going to be moving to the point where we're dealing with a problem of contempt of the Legislature.
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What I do suggest is that you go back and ask the question again and think about the question again, in terms of the specific circumstance in which a committee of the Legislature asks you. If it turns out that you're easy in your conscience, after that consultation, I think we'd kind of like written communication that tells us the answer in terms of the numbers. So that's my first point with respect to what it is that my colleague raises.
I have a question for you about how these sections actually operate. If a member of the Civil Service were to come to you, is it part of your screening process that you say to them, have you been to your supervisor and have you been to your deputy minister? Because if you haven't been, we can't talk to you. Is that actually how it works on the ground when a member of the Civil Service comes to you?
MR. BISHOP: I might get Julie to respond because I know she's very familiar with this and we've had some experience.
MS. VANDERVOORT: I just wanted to address the first scenario about being compelled to answer in court. Staff of the Ombudsman's Office are not compellable and so we can't really use that comparison that if we were in court we would be compelled to answer how many investigations we have ongoing. We're not, in fact, compellable and we're not subject to FOIPOP requests either. To me, that's an indication of the degree to which the elected legislators take the confidentiality of the Office of the Ombudsman very seriously. That is why we are as cautious as we are here today, around what our responsibilities are to confidentiality both under the Ombudsman Act and now under these new regulations. I wanted to address that point first.
Now, I'm sorry. Your second question?
MR. EPSTEIN: Well, let's continue this discussion, then. I wasn't aware that you weren't compellable in a court but, believe me, the situation and the status of a Legislature under the Constitution is quite a different question. The Legislature, in fact, is its own body, including for constitutional and charter purposes. We have our own status separate from the courts, separate from the administration. The Legislature is, believe me, entitled to ask this kind of question and the problem that you run into is the question of contempt of the Legislature. We ultimately do set the rules for what it is that all employees of government do. That is part of why it is.
In any event, the question was, how does the screening work when a member of the Civil Service comes to the Ombudsman's Office? Do you consider it your duty? Is it part of the routine that you attempt to enforce these regulations by saying to them, have you spoken with your supervisor and have you spoken to the deputy, because if you haven't we can't entertain dealing with you. Is that how it works in practice?
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MS. VANDERVOORT: Okay. If a call or an inquiry were to come across my desk this afternoon, I would talk to the person, I would say, are you familiar with the disclosure regulations? What is your understanding of them? I would walk that person through the regulations step by step. I would offer to meet with that person in person, if they are more comfortable, or not if that makes them more uncomfortable. I would explain that provision around have you spoken to your supervisor, if not, why not? There is this balancing act around what is reasonable. If they take the position that no, I can't go to my supervisor I would say okay, tell me why you feel that way. What is the evidence for that belief that you can't go to your supervisor or that you can't go to the deputy head? Those kinds of determinations around what is reasonable, the degree to which it is a subjective belief or an objective belief, that's a balancing act.
The regulations contemplate that they can come directly to the Office of the Ombudsman if there is a reasonable belief that they can't do otherwise. I would also point out to that person that they have the option of asking advice from Justice Nunn in his position as Conflict of Interest Commissioner. I would point that out to them. I would basically point out all their options to them, including sometimes callers are not aware of other avenues of redress that have nothing to do with our office.
So that's the way it would start and then, step by step, based on what is presented, we proceed or we don't proceed. It's not that different from any other investigation or any other complaint that may come through our office.
MR. EPSTEIN: Given the wording of the regulation, it sounds like that is a reasonable way to approach the question. It certainly is preferable to do what you have described rather than to simply very quickly and automatically say have you spoken to your supervisor, have you spoken to your deputy. If not, we can't hear from you.
What I'm wondering - and I'm glad to hear what you described - is there either a policy or operations manual that the Ombudsman's Office has for itself that sets out this procedure so that successors to the Ombudsman and to yourself or all staff will understand that that is the approach and how it is to be dealt with?
MS. VANDERVOORT: Yes.
MR. EPSTEIN: There is and that is set out there, great. My other question is what about, again, in the discussions that you have with a member of the Civil Service who might come forward, do you discuss this question of imminent harm as well?
[10:00 a.m.]
MS. VANDERVOORT: I would go through - these are not long regulations, and they're presented in fairly plain language in the first place - all of them, including that one.
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MR. EPSTEIN: What do you use as your guideline for that? Could you give us some examples, not of cases necessarily that have come to you, but of your idea of what it is that might be involved in imminent harm that would be acceptable then for members of the Civil Service to act upon?
MS. VANDERVOORT: For me, just as a matter of common sense, I think that someone who is concerned about imminent harm to life or to safety may not necessarily think of the Office of the Ombudsman first. I'm happy to talk about that part of the regulations, but someone concerned about imminent threat to life is probably going to call the police or call 911.
MR. EPSTEIN: What about things like food safety or food health, for example? It may be that imminence might not be within the next five minutes or half an hour, simply because of how the food chain works, and yet if they were aware of some serious problem, say inspections or processing and so on, how would that fit within the regulations?
MS. VANDERVOORT: To me it is getting a bit speculative. I don't think imminent is that complex a word. I think that imminent is imminent, and that if someone is concerned about a larger problem that needs to be addressed outside of the context of imminent threat to health or safety, then I think the regulations contemplate that there is a way to get that concern addressed.
MR. CHAIRMAN: Mr. Taylor.
MR. TAYLOR: Mr. Chairman, I want to say that I have all the respect in the world for the Ombudsman's Office, and appreciate the work that they do and respect the fact that you did seek some counsel from the Department of Justice relative to some anticipated questions, but back on December 14th at this very committee, we debated for some time a motion that was put forward to bring forward new whistleblower legislation. Some of us voted against that motion in anticipation of the Ombudsman's Office representatives coming forward this morning. We hoped that we would be able to glean, from the Ombudsman, the number of complaints that the Ombudsman's Office had received, so we could discern, as a legislative committee, how effective the new legislation was.
I respect the position that you find yourself in this morning. In retrospect, Mr. Chairman, I have to say, now, that by speaking against the legislation in support of the Ombudsman coming in, and you know we have scheduled and rescheduled and so on and so forth, trying to accommodate everybody involved with the Ombudsman's Office to bring this meeting forward, I just will say that I'm extremely disappointed. That's all I have to say, thank you.
MR. CHAIRMAN: Mr. Graham.
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MR. GRAHAM: Mr. Chairman, I would like to associate myself with the thrust of the comments from the member for Cape Breton West, the member for Halifax Chebucto and the member for Colchester-Musquodoboit Valley. It is uncommon for a legislative committee like ours to receive a response like the one that has been provided about information that I would suggest is relatively innocuous, especially given some of the buildup to this. I'm the critic in this area for our Party, and I haven't been particularly quiet about the concerns that our caucus has about this situation. I think it's fair to say that we believe that there's no reasonable exemption for people to provide disclosure of wrongdoing to the police, to doctors, to counsel, to the Auditor General, to shop stewards and to the media.
As a consequence, we have suggested that the piece of regulation that's before us right now appears to do more harm to the idea of opening up the doors of government than it does assistance. It's sadly ironic, I think, that this whistleblower regulation not only muzzles those people who are in government but appears to muzzle the Ombudsman. I say that with the greatest of respect, Mr. Bishop, but when you provide the cautionary notes that you do and you feel that the words - and you haven't made these, you haven't put these regulations in place but your interpretation, perhaps with the assistance of others, of these regulations is essentially, as you described it, do your work and keep your mouth quiet.
Certainly a more expansive view is one that is appropriate. I'd like to at least seize upon the limited information that you've provided us with respect to how many disclosures have happened since the middle of September 2004. Very few could potentially mean none at all. Can we assume that we're not dealing with a situation where there have been none at all?
MR. BISHOP: If I may, and I'd like to come back, if you don't mind, to Mr. Taylor's questions. I think he raised this issue originally, and since raising it I've had an opportunity to sit here and reflect upon it. Several of the members, in fact all of you who have spoken on the issue, have caused me to sit here and have a great deal of reflection. I think there's interpretation, there's some breadth in that confidentiality aspect, to the extent, I'm not sure what it is. But from listening to you, and the importance of this committee, I think that's really what drove the message home to me. You're certainly not someone calling at the office and asking us a question, and things of that nature. So, if you don't mind, I'm prepared to rethink my original position on that, and I would like to address it to Mr. Taylor because he raised it first.
MR. GRAHAM: That's only fair. If the chairman feels that's fair . . .
MR. BISHOP: In terms of assessments or inquiries at the office, we've received one since September 16th. We have no active investigations. You can debate whether it's two, but I think one is the right number. (Laughter)
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MR. TAYLOR: I just would like to say that I appreciate the Ombudsman bringing forward the answer to the question that was posed some time ago. I realize, and I indicated earlier, Mr. Chairman, that the Ombudsman and his office are in a difficult position, and in spite of the counsel you received from the Department of Justice, we appreciate you respecting the wishes of the committee regarding that question, because we did state quite emphatically, those of us who voted against the motion to bring forward new whistleblower legislation, that we felt it may be appropriate for the Ombudsman to come in, shed some light on how effective the new regulations are. For the time being, I'm going to reserve comment on their response to the question, although I really respect the Ombudsman bringing forward the reply.
MR. CHAIRMAN: Mr. Graham, you're still on. We'll give you a few extra minutes, too.
MR. GRAHAM: I, too, would like to thank you for listening to our pleas to at least address this issue in a general way. I think in some respects this reinforces the concerns that committee members have had about whether or not the process that's put in place will discourage disclosure rather than encourage it. It reinforces our concern that people are not inclined to go up the line. It reinforces our concern that less than half of the employees feel that they could file a complaint without some reprisal. I think that it underlines even more the need for the government to rethink this piece of legislation and to respond to the calls by both Opposition Parties, to the suggestion that this piece of regulation has done more to muzzle than to bring light to concerns that exist in the public Civil Service. I would like to bring you specifically to one area in which perhaps it explains this possibility.
Appendix 20-C of the Human Resources Management Manual, policies in keeping with the regulation, speaks to the role of the Ombudsman. In the first bullet it says, Investigation Criteria. "The Ombudsman must investigate a disclosure of a wrongdoing if all other procedures available to the disclosing employee have been exhausted before submitting the disclosure of wrongdoing to the Ombudsman's Office." That doesn't jive with precisely what's said in the regulations, at least in the way that I've seen it.
Someone is entitled to go directly to the Ombudsman, after they've considered step one and step two. If we have more than half of the employees in the public Civil Service paranoid about reprisals, and if they were to read Appendix 20-C and it says that you need to go through your supervisor or you need to go through the deputy head before you can get to the Ombudsman - who would be seen, of course, as somebody who's potentially more independent - then that, in itself, could be discouraging. I've raised this with the minister directly and it seems that the language - and this is one example of the language - around the preparation of the appendices is confusing and it also underlines the issue of whether or not the policy directive is consistent with the language of the actual regulations.
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I'm wondering if you could comment on that and, more specifically, you may not be inclined to comment on the very low number of one complaint going to the Ombudsman, but perhaps you could give us some comment on whether or not you expected more than one complaint over four months, which averaged over a year would make for three complaints, ultimately making its way to the Ombudsman?
MR. BISHOP: In terms of the policy, I really don't necessarily look at that. I think the governing provisions are the regulations and from my standpoint, I look at the regulations. There may be some conflict between what you've just read me in the regulations, I don't want to take a definitive position on it but when I'm trying to assess what our role is under the regulations and when we're trying to assess, for example, what reasonableness is for the individual bringing them forward to not go to point a or point b, we look at the reasonableness from the standpoint of the eyes of the individual, or the mind, as well as an objective assessment of it.
I would also add that our importance in this area should be reflected, I think it can be measured somewhat. When someone comes to us, we've taken the position recently that we'll go and sit down and meet with that person or we'll offer to, they may not want to. I think it's important to sit down at a face-to-face meeting and talk to the person, even to identify what their main concern or complaint is.
In terms of whether or not one is a lot or one isn't a lot, I don't know the answer to that, coming to our office. I think probably you would have to measure how many are in the system now and I don't know that. I'd be surprised if there's not a few that are in the system but I don't know. In my view I initially thought that we would have received a few more but sometimes I think these things take a little time, people need to have confidence, they need to have confidence in us.
MR. GRAHAM: Was your staff enhanced in order to deal with these potential complaints?
MR. BISHOP: What we have is the present complaint process is absorbed within the office, itself, with our present establishment. We've identified Julie as the person to deal with those matters. We've also gone forward in our budget this year to request that we be funded for a person to not only deal with complaints as they come in, but also to help with going out to government and talking to different departments and employees and things of that nature.
[10:15 a.m.]
It would be my assessment that when we receive - and I'm convinced we will - an investigation to do, it will take anywhere from three to six months and require two people. It has to be done rather quickly and comprehensively. That would be my assessment on the timeline to do the investigation.
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MR. GRAHAM: Just one last thing. Section 11 sets out the criteria for whether or not you do an investigation but it seems that you won't know the answer to many of the questions that are being asked of you until you actually do the investigation. I'm wondering how you address that possible frustration of not knowing the answer to the questions? I look at (b), (c), (d) and (g) as examples of regulations that you don't have a clear handle on when somebody arrives at your door and you need to do something to at least inform yourself better of where that stands.
MR. BISHOP: That's why I think it's important when we receive a complaint that we sit down with the individual. It's going to take some time to determine whether or not this applies. I assure you we'll take a conservative approach and if there's any doubt, we'll be erring on the side of the employee who made the complaint.
MR. CHAIRMAN: Ms. Massey.
MS. MASSEY: One of the questions that I had down for this morning was I was going to ask you if you had seen the poll that NSGEU had done with some civil servants that found that 27 per cent had written of some form of corruption, unethical behaviour or mistakes but were afraid to report it. My question was going to be, do you think that fear will discourage people from disclosing but I think that question has been answered, and if these regulations have effectively tied the hands and managed to shut up a lot of people in coming forward, except for this one brave soul in the last four months.
Just a few moments ago you said that these things take time. Unfortunately, for some of these people who may have witnessed something untoward, they only have a 12-month period in which to get themselves together and get up the courage and do all these things that they have to do to come forward, to help themselves and the other people across the province who may suffer because of what's going on.
I would just like to comment that, again, this government has enacted regulations, instead of legislation, and that, I think, just shows the importance that they put on the people of Nova Scotia. I don't know if you have any comments in regard to my comments. Thank you.
MR. CHAIRMAN: Ms. Whalen.
MS. DIANA WHALEN: I wanted to look a little bit at this 12-month rule. I wonder if you could just perhaps clarify for me - it's interesting what Ms. Massey just said about 27 per cent of the civil servants that were polled saying that they have seen some wrongdoing or misappropriation or whatever. In that 27 per cent it doesn't say, have you seen it within the last 12 months, it said are you aware of it in your workplace or have you ever heard of it. So the 12-month rule, what I'm wondering in this case, if you could clarify to me if I'm an employee and I hear of something that occurred but it didn't occur in the last 12 months,
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if I come to you now will you look at that complaint because I've only just become aware of it?
MR. BISHOP: I think the trigger word there is when you became aware of it.
MS. WHALEN: So that's the key thing, if I've heard of some . . .
MS. VANDERVOORT: The exact wording is if you became aware.
MS. WHALEN: So you would be willing to look at something from a previous time if I became aware that five years ago something untoward was done, you'd be able to look at it, or 10 years ago, provided it has only come to somebody's attention?
MR. BISHOP: Yes.
MS. WHALEN: That gives a little more leeway then. That should be widely known by staff if they say that they just heard about it. I think that there's a lot to be said about the fact that it does take a lot of courage, as has been noted, that there's a lot of fear, perhaps fear of your workplace, fear of changing the environment in your workplace, or having to continue to work with people who you have a complaint against. I realize you deal with that not only in these wrongdoing cases, but in many of the cases that come before you.
I do think that it needs to be examined on this 12-month rule, because people may take longer to come to the realization that this should be reported. I wanted to ask, as well, about the reluctance or the way the regulations are written that almost precludes going to the police first if you have a complaint. Would not a lot of these wrongdoing complaints relate to fraud in one way or another?
MR. BISHOP: I don't know what the statistics are for other jurisdictions. We don't have very many here to deal with at the present time. There certainly would be some, and the police would have a role.
MS. WHALEN: I was going to say exactly that. If it's a case of fraud or criminal activity in any way, would they not be entirely right to bring the police into that investigation rather than going through a more bureaucratic process of speaking to supervisors and going through the chain of command, as is outlined in the regulations in order to bring it to your office?
MR. BISHOP: Would you mind if Julie commented first on this?
MS. WHALEN: That's just fine, either one.
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MS. VANDERVOORT: In terms of the definition of what wrongdoing is, and significant mismanagement of public funds is contemplated in the definition, that's one example of wrongdoing, but we have very little to draw on in terms of experience from other jurisdictions. No other province really has any comprehensive legislation or regulations similar to what Nova Scotia is attempting to do. So, again, if you look to Ottawa as the one jurisdiction where you might have some experience to draw on, and I'm just looking at their annual report for 2003-04, in terms of the federal Public Service and disclosure of wrongdoing, misuse of public funds or assets, that was six complaints in a year.
So whether most of the complaints coming forward eventually in Nova Scotia are going to have something to do with fraud or mismanagement, we don't know. If you look at the federal example, that would appear not to be the case, but we're really speculating on what may or may not happen in this jurisdiction. In terms of going directly to the police, again, I don't see how anyone could argue with if there is an imminent threat to life or safety that anybody, any one of us, picks up the phone and calls 911 without reading through the disclosure of wrongdoing regulations to see whether or not that's what they should do.
MS. WHALEN: I fully accept that when you're talking about common sense, certainly if it was imminent, because that is a very alarming clause, actually it says if it's an alarming situation you can go to the police. But the fact is there are a lot of other situations that might be putting at risk public funds, it might be wrongdoing in another way in the office that I think is very important that requires some fast action, that maybe you don't want to instigate a long, lengthy, bureaucratic process in order to bring that forward. Maybe you'd like to see it go directly to the police. Is there a benefit to coming directly to your office? Would you say there's more confidentiality if they come to your office rather than going to the police with the complaint?
MR. BISHOP: Well, if they came to our office, for example, if there was criminal activity, I would look at my provisions here and I would say, well, I think it's appropriate for you to go to the police on this matter. I don't see, when I look at this, unless I'm totally misreading it, that it gives me an option to look, should we be investigating or shouldn't we, how should they deal with the matter. The real issue is how do you deal with the matter.
MS. WHALEN: If I could, then, in a hypothetical case, if somebody comes to you with a case that relates to criminal wrongdoing, you would suggest, right away, that they go to the police?
MR. BISHOP: I think there would be two, there's a role for us to play in that and there's a role for the police to play. The matter has to be dealt with, and there may be more than one agency to deal with that matter. That's how I would approach it, based on what I'm aware of at the present time, with the regulations.
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MS. WHALEN: You've indicated that you have a commitment to deal with these within a month, is that right, or a good share of the complaints will be dealt with within a month?
MR. BISHOP: Well, when I mentioned that, it all depends - maybe I didn't say it correctly, maybe I mumbled my words or something. We get a lot of complaints that are dealt with, or inquiries are dealt with within a month, that's not necessarily disclosure but we get a lot of inquiries dealt with, most of those, the first week - I should say, most of those are referrals. The first month, a large percentage are dealt with in the sense that there's a facilitated resolution to them. You'd sit down, and it's going to take you more than a few days if someone comes to you with some of these to sit down and find out what is our role, where should it best fit and should it go to this organization or another. My sense is if it's a fairly detailed comprehensive one, that will take some time to investigate it, and I would think three to six months.
MS. WHALEN: But if it was a serious one that you felt had criminal implications, would you immediately send it to the police?
MR. BISHOP: Well, I think I have an obligation to bring it to the attention of the police.
MS. WHALEN: So that could be dealt with quickly, in that regard?
MR. BISHOP: Well, it could be dealt with quickly from the standpoint of the police being notified and dealing with it, but is there some other role for us to play in terms of making recommendations and investigating it, not necessarily parallel but maybe afterwards. There's maybe other issues.
MS. WHALEN: If I could, just one more question and maybe it's for Ms. Vandervoort. What I'm wondering is if a person comes in and they have not gone through the other levels that are outlined, as Mr. Graham and others have read the detail of where you're supposed to go through, if they come to you directly, because they feel more comfortable, would you send them back to go through those other channels or would you deal with them; will you take their complaints?
MR. BISHOP: The first thing we'll do is we'll try to sit down with them and have a face-to-face meeting with them, and in that meeting we'll walk them through the regulations, but we'll ask, well, what is your complaint and what is your problem with going to a supervisor, what is your problem with going to the deputy head? It won't be anything magic, we'll sit and ask them, do you have a problem with going there? If they say they have a problem and it sounds quite reasonable and it can be fit into here, we'll say we'll do it. Our first response isn't, you're not to be here, it's just, what is your concern?
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MS. WHALEN: Would their concern for confidentiality be considered reasonable grounds to come directly to you?
MR. BISHOP: Well, the confidentiality would be in terms of if they feel that it's not appropriate to submit it to another one. That's embedded in that, I would suggest to you.
MS. WHALEN: That's good. So they can come directly to you if they choose and just explain their reasons.
MR. BISHOP: Yes, they can. We'd be pleased if they did, but that doesn't mean that they all should. I would think they should feel open to come to us, the regulations say they should come to us, it says you should go in these two cases. Well, some people won't know what they are.
MS. WHALEN: But the only thing that, again, when we talk about common sense, it flies in the face of the surveys of staff that show that they have a reluctance to go directly - I think almost 50 per cent said they would be reluctant to go directly to their supervisor. To put that in regulations that you should go there flies in the face of the existing situation in the Civil Service. I would just suggest that they would be more inclined to come directly to you and that they should be encouraged to do so. And that's all.
MR. CHAIRMAN: Mr. MacKinnon.
MR. MACKINNON: Mr. Chairman, through you to Mr. Bishop, you indicated that you had spoken with officials or somebody within the Department of Justice seeking legal counsel before you attended here because you anticipated certain questions. Did you receive that legal counsel in writing?
MR. BISHOP: No, it was verbal.
MR. MACKINNON: Would you endeavour to provide an undertaking to the committee that you will seek that legal opinion in writing and provide it to the committee?
MR. BISHOP: If I may, I don't mind if Julie - I must caution, when we spoke to Justice, I'm not sure if we asked them, now in reflection, well, you're the one who talked to them, go ahead.
MS. VANDERVOORT: Sure, I'll speak to this. It was a fairly informal conversation. I have a legal background and I called up a Department of Justice lawyer and I said, what do you make of this wording, the wording that unless required by law or permitted by these regulations, the Ombudsman must not publicly disclose any information that comes to the Ombudsman's knowledge in the performance of duties under these regulations. I said, what do you make of that? The answer that I got was that that is very comprehensive language that
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the Legislature, when it was drafting these regulations, had a choice of wording and they chose very strong wording. Also, I just want to repeat that all of the information that you're seeking is available, but it's available in the context of an annual report.
MR. MACKINNON: Mr. Chairman, through you, who is the individual within the Department of Justice that you sought this legal counsel from?
MS. VANDERVOORT: I think calling it legal counsel is exaggerating the matter a little bit. We didn't seek a legal opinion.
MR. MACKINNON: Wait now. Mr. Chairman, I'm getting conflicting messages here. Mr. Bishop says we got legal opinion; Ms. Vandervoort says we received legal advice, and now she's saying we haven't received legal opinion. What did you receive, and is there any documentation to confirm, correspondence or interaction - e-mails or anything - between yourselves and the Department of Justice before you appeared here today?
[10:30 a.m.]
MS. VANDERVOORT: I think I just explained that I called a Department of Justice lawyer up and as I just said, I asked what do you make of this language, what do you think of it. We did not formally request a legal opinion.
MR. MACKINNON: Mr. Chairman, Ms. Vandervoort indicated earlier, when my colleague, the member for Halifax Chebucto, asked the question about reporting this information to members of a committee of the Legislature, that they were immune from having to report this information. Obviously, she must have received legal counsel on that unless she made that decision herself. Who did she speak to or was that her own interpretation of the regulations and the law before she made that comment?
MS. VANDERVOORT: That comment was specific to the Ombudsman Act that indicates that we're not compellable in court.
MR. MACKINNON: Who made that decision?
MS. VANDERVOORT: I don't actually have an opinion on what we may or may not say to this committee.
MR. MACKINNON: Did anyone in the Department of Justice advise you on that point?
MS. VANDERVOORT: The comment that I received was that it was very comprehensive language.
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MR. MACKINNON: Mr. Chairman . . .
MR. BISHOP: If I may, sir, we may have confused you.
MR. MACKINNON: I guess you did.
MR. BISHOP: And I apologize. When we were talking about the Ombudsman Act and about court, it really has nothing to do with the disclosure here, that's a separate issue. We carry out our investigations under the Ombudsman Act and it says you're not compellable, there is confidentiality. In terms of the disclosure regulations, in terms of Section 24 and the confidentiality aspect, we did talk to Justice counsel. I was of the impression that Justice counsel indicated to us it was a very broad, comprehensive exclusion. I don't know if we asked Justice counsel anything deeper than that but you spoke to them.
MS. VANDERVOORT: No, it was an informal conversation.
MR. MACKINNON: Let's cut it all short. Through you, Mr. Chairman, don't you feel that there should be some type of paper trail to back up your comments and opinions that you're offering to members of the Legislature so that we have clarity on what direction to go on this particular issue? We've had one complaint since the new regulations came in. There's considerable apprehension and fear about the effectiveness of these regulations. Ms. Vandervoort, you indicated that they are the most comprehensive in the country, of any jurisdiction. I mean, comprehensive in what context? In terms of shutting down complaints or what? Honestly, as a member of the Legislature, I can't get clarity from you today on what we're doing here.
MS. VANDERVOORT: I do have to clarify that I did not say that these are the most comprehensive regulations in the country. What I said was that Nova Scotia is the only jurisdiction with legislation.
MR. MACKINNON: The most comprehensive - quote, unquote - were the words you used.
MS. VANDERVOORT: Nova Scotia is the only jurisdiction with any regulations. We don't have anything to compare it to, really.
MR. MACKINNON: If I could ask one final question because I think Hansard will speak to what I said on Ms. Vandervoort's comments. You indicated you've had one complaint since the regulations came in. How many have you had up to that point in the last nine months?
MS. VANDERVOORT: But we haven't had regulations for nine months.
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MR. MACKINNON: No, that's not what I said. I said prior to these regulations coming in, how many complaints from individual civil servants or collectively have you had in the previous nine months?
MS. VANDERVOORT: But how could we have had any if there were no regulations in place yet?
MR. MACKINNON: Well, I'm completely at a loss as to where these witnesses are going with this.
MR. BISHOP: In terms of before the regulations, we had one complaint over the last several years that you could probably loosely categorize as it would have fallen in these regulations. In terms of complaints in the office, generally, that we received, it was around 1,700 a year but that's not dealing with the Public Service disclosure.
MR. MACKINNON: What percentage were Public Service?
MR. BISHOP: Disclosure?
MR. MACKINNON: Out of the 1,700?
MR. BISHOP: Very small. I asked around the office if we received previous concerns that would fall under these regulations and they were aware of one that we had investigated, under the authority of the Ombudsman Act. I don't mind going back to Justice counsel and getting them to confirm, in writing, what they told us verbally and providing you with a copy.
MR. MACKINNON: Please do. Thank you.
MR. BISHOP: After reflection and listening to you folks it hit me that maybe we just asked them if it was comprehensive and should we not disclose. I don't know if we brought the legislative committee into it, I just don't know. You've caused me to give it a fair amount of thought and I appreciate that you people were more astute than I was on it, so thank you.
MR. CHAIRMAN: Does anyone have further questions? If not, Mr. Bishop and Ms. Vandervoort, thank you very much for coming in, making your presentation and answering questions of the committee. I guess we look forward to that correspondence that has been requested of the committee. Are there any final closing remarks you may have?
MR. BISHOP: If I may. This is the first opportunity that I'm aware of that the Ombudsman has appeared before the committee. I found it an excellent learning experience. I found it very beneficial, you may want to talk to us about the general duties of the Ombudsman sometime. I think it's better to flow these out.
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We will secure the legal opinion but irrespective, I feel comfortable in responding and identifying to you that we have received one complaint. I just regret that it had to be drawn out with such energy on your part. Our attitude on this is we have regulations which set out procedures for us to follow. My position is that when people have something to bring forward to us in these areas, they are sensitive, they are probably under a lot of stress, we have to be sensitive to that ourselves, that's why I encourage our staff to sit down and meet with them and try to come up with the best approach to deal with their concern, given the regulations.
MR. CHAIRMAN: Thank you very much for appearing and maybe, as you say, at a future date we could have you in again.
We do have a little bit of business that we have to conduct. Some discussion on Phase II of the bulk ad distribution that will be coming up in April, there will be a new ad coming out. We have changed the format of the ad that went in the papers and there were a few other things that we had discussed as well to try to enhance that process a little more. Does anybody have any comments?
MR. GRAHAM: Mr. Chairman, can I just ask what the date is? I see that February 22nd is the date for the student debt, Department of Education matter. Has the matter involving special education been scheduled?
MR. CHAIRMAN: Not as of yet, I don't think.
MRS. DARLENE HENRY (Legislative Committee Clerk): They've said April 26th is good for them, they're booked solid for March, it's one of their conferences and training sessions they have coming up.
MR. GRAHAM: April 26th , thank you.
MR. CHAIRMAN: On February 22nd we have student debt. Okay, are you fine with that, Mr. Graham?
MR. GRAHAM: Yes, thank you.
MR. CHAIRMAN: Getting back to the cost of the bulk ad distribution, there are a few things we have to discuss, I guess. We had talked about putting it on EastLink Cable, that would include Glace Bay Seaside Cable as well, and that would cost about $1,000 a week. The estimated cost was quoted as $2,200 for a two-week period, and that included Glace Bay. Then there was the teaser ad that we talked about at an estimated cost of $5,500. This ad will run in all the daily and community papers for two weeks prior to the complete list being posted. There are six dailies and 25 community papers that would have to be
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involved. So the total cost is estimated at $7,700 for that. The total cost of the ad for the Spring ad would be estimated at around $17,300.
MR. MACKINNON: Is that within budget?
MRS. HENRY: Yes, actually it is. I had inquired of our person and she said that's fine.
MR. CHAIRMAN: Are there any further comments? Mr. Epstein.
MR. EPSTEIN: I'm new to this committee and I wonder if I can just have some help in understanding what it is that we're dealing with here. I know that the question of advertising for members of the general public who are interested in the possibility of appointments to agencies, boards and commissions is a policy that's come to the fore only within the last four or five years, and it's certainly a very good one. It's certainly a good idea to advertise. I hadn't understood before I saw the papers in front of us today with respect to the bulk ads that this was something that came to this committee. Is this within our discretion? This is a decision that's made here rather than somewhere else?
MR. CHAIRMAN: Yes.
MR. EPSTEIN: This is a budget that's assigned to this committee for advertising, is that how it works?
MR. CHAIRMAN: And it is billed back to the different departments. For your information, Mr. Epstein, the committee has done a lot of work on the bulk ad distribution over the last year. We've had Communications Nova Scotia in at one of our meetings, they came up with sort of a plan, and this is sort of a continuation of that plan that we had drafted here a few months back.
MR. EPSTEIN: I see that one of the things we're given today is some statistical information on the results. So, for example, we're told that in the Spring of 2004 there were 180 persons who applied to 353 boards, of that 58 were first-time applicants; we're told that in the Fall, 143 persons applied to 278 boards and 61 were first-time applicants. Is there statistical information from previous years that's been around or generated? Does anyone know?
MRS. HENRY: This is the first time this has been done, and this is monitored by Executive Council because we had implemented a 1-888 number, and she has kept track of all the calls.
MR. EPSTEIN: Sure, that's in fact where the inquiries would normally go, to Executive Council. Has the committee had any discussion about whether this is cost
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effective? Are these good results? Do we know if these are good results, or we don't really have a basis for knowing yet?
MR. CHAIRMAN: This is the start of it. This is the first time we've had any sort of information to tell us who has applied, how many and that sort of thing. I guess at some future date we'll be sitting down and maybe assessing what we have learned over how this is working.
MR. EPSTEIN: And is the Executive Council going to continue to monitor this? So they'll give us this information in the future as well.
MRS. HENRY: Yes.
MR. CHAIRMAN: Is everyone satisfied with what we're going to do for the next one? Agreed. (Interruptions)
[10:45 a.m.]
MR. EPSTEIN: I have one additional point, if I could. I was just noticing one small thing that was a follow-up to our discussion with the Ombudsman, and I wanted to put it into the Hansard record on the assumption that the Office of the Ombudsman is going to be reading the record, so I wanted to note this.
I was looking back at the final report; this is the report, I think, that the Ombudsman referred to in which he said that normally when he finishes his year he would report on what kind of investigation took place with respect to various complaints but I see in the latest one that - and I'm reading here from Page 11 when they give what they call their Performance Measures - they give what they call Investigation Section Statistics. They have them laid out for the last couple of years: 2001-02, up to 2003-04. They categorize them by Referrals, Inquiries & Assessments and then Formal Investigations. This is fine. This gives an overall picture. It doesn't tell us anything, of course, about any that might originate within the provincial Civil Service or the broader public sector itself.
I just want to flag this for the Office of the Ombudsman that they might want to refine their statistics to include this additional information when it comes forward, especially given the new regulations that have been put in place and the level of concern that has been expressed about this whole whistleblowers issue within the broader Public Service. So I just want to note that from the most recent annual report in the hopes that when the Ombudsman writes the next annual report there will be at least one additional line of information there.
MR. CHAIRMAN: Point well taken. Motion to adjourn.
MR. MACKINNON: I so move.
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MR. CHAIRMAN: The motion to adjourn is in order.
The committee is adjourned.
[The committee adjourned at 10:47 a.m.]
