NDDN Committee Meeting

    Good afternoon, everyone. Welcome to meeting no. 47 of the Standing Committee on National Defence.

    Today we are pleased to have with us the representatives of the Canadian Forces Grievance Board, Bruno Hamel and Caroline Maynard.

    I will allow you 10 minutes—we're being generous today. Then committee members will ask you their questions. Thank you for being with us.

    Mr. Hamel, go ahead, please.

    Thank you, Mr. Chairman.

     Mr. Chairman and honourable members, good afternoon.

    It's a pleasure to be here with you today to answer your questions concerning the Canadian Forces Grievance Board's role in the military grievance process, given that there are provisions in Bill C-41 that directly affect us.

    Joining me here today is Caroline Maynard, general counsel and director of operations at the board.

    I would like to begin by giving you an introduction to the board.

    In operation since June 2000, the Canadian Forces Grievance Board is a quasi-judicial tribunal which is independent from the Department of National Defence and the Canadian Forces; it is, in effect, the external component of the Canadian Forces grievance process.

    Since its creation, the board has earned a reputation as a centre of excellence in analyzing and resolving military grievances and has developed a substantial expertise on a variety of subjects relating to the administration of the affairs of the Canadian Forces. Apart from dealing with individual grievances, our work enables us to identify trends and areas of dissatisfaction, which we regularly share with the senior leadership of the Canadian Forces.

    The board is mandated to review the grievances referred to it under the National Defence Act and the Queen's Orders and Regulations for the Canadian Forces. Under the regulations, four types of grievances must be referred to the board, which represents some 40% of the total that reach the final level of the grievance process. Other grievances can also be referred to the board on a discretionary basis.

    Upon completing its review of a grievance, the board simultaneously submits its findings and recommendations to the grievor and to the Chief of the Defence Staff who is the final decision maker. The Chief of the Defence Staff is not bound by the board's findings and recommendations, but must provide reasons, in writing, should he choose not to act on them.

    I am pleased to note that Bill C-41 includes a provision which would replace the board's current name with "Military Grievances External Review Committee". This may appear a minor matter, but it is in fact an important change that has long been sought by the board.

    The board feels that its current name does not reflect its external role and that it has led to misunderstandings by giving the impression that the board is internal to the Department of National Defence and the Canadian Forces. The resulting confusion and complications have often been counter-productive.

    This name change will lead to a better understanding of the specific and unique role for which the board was created. It will also underline its institutional independence while clarifying its mandate.

    Also, as Bill C-41 is intended to be the legislative response to the report submitted by the late Chief Justice Antonio Lamer on military justice, I would like to reaffirm the board's support of the 18 recommendations related to the grievance process that are included in this report.

    Several of these recommendations have already been implemented and others are contained in Bill C-41. Three recommendations, however, which specifically relate to the board and which were intended to facilitate its work, do not appear in the bill.

    One of these recommendations proposes that board members be permitted to complete their caseload after the expiration of their term. A second would provide the board with a subpoena power, while the third calls for the alignment of the board's annual report with the fiscal year rather than the calendar year. To give effect to these recommendations, legislative amendments to the National Defence Act will be required.

    Beyond these 18 recommendations, Chief Justice Lamer also pointed to other difficulties when he noted that, and I quote, "... the grievance process continues to suffer from unacceptable delays, it is overly bureaucratic and continues to lack transparency." The board shares the concerns of Chief Justice Lamer.

    For this reason, on the issue of timeliness, the board has worked diligently over the years to increase its efficiency and has managed to reduce its file review to an average of 90 days. It has also been able to eliminate its backlog and to reduce its inventory of grievances, all this while ensuring that the quality of its work remains at a very high standard.

    As a final point, I would like to return to the fact that only certain types of grievances are sent to the board for review. The National Defence Act places no restrictions on referrals to the board; however its implementing regulations limit our review to only four types of grievances.

    Because of this, the majority of Canadian Forces members whose grievances reach the final level do not benefit from an external and independent review of their grievance by the board.

    In examining only a fraction of the unresolved grievances at the final level, the board is of the view that it is not being used to its full potential. We believe that every Canadian Forces member should, at the final level, have their unresolved grievance reviewed by the board, regardless of the subject matter. This is a question of fairness and transparency, which were concerns raised by Chief Justice Lamer in his report.

    On this subject, I would like to express the board's satisfaction with the introduction, on January 1, of an innovative pilot project, whereby the Canadian Forces have begun referring to the board all unresolved grievances that reach the final authority level.

    Although this is a pilot project and these additional files are being referred to the board pursuant to the discretionary power found in the regulations, the board firmly believes in the benefits of such a model. By having all unresolved grievances reviewed by the board, members of the Canadian Forces and the Chief of the Defence Staff benefit from an independent and expert review. This optimizes the board's contribution to the grievance process.

    The board is optimistic and hopes that this new model, if it performs as well as expected, will be adopted and implemented. Amendments to the National Defence Act and its regulations may be required for full implementation.

     Mr. Chairman, in conclusion, the board welcomes the name change proposed by the bill and is encouraged by the recent initiatives put forward by the Canadian Forces regarding a new model for referring grievances. It remains resolved to maximize its contribution to the military grievance process.

    I thank you for inviting me to speak here today. I would be pleased at this time to answer your questions.

    Thank you very much, Mr. Chairperson of the Canadian Forces Grievance Board.

    I'll now give the floor to Mr. Leblanc, who has seven minutes.

    Thank you, Mr. Chairman.

    I have a few quite simple questions. Then Mr. Dryden will continue, if we have any time.

    Mr. Hamel, thank you for your presentation. As you said, it was an introduction to your quasi-judicial institution. That overview was frankly very important for us. In any case, I learned a great deal.

    Ms. Maynard, thank you as well for being here.

    You targeted 18 recommendations made by former Chief Justice Lamer. Three of them, in your opinion, aren't included in Bill C-41. Did someone explain to you, or have you understood why they aren't included in it? Why the reluctance to include them? We support the bill, but we hope it will resolve a series of legal issues that moreover have been dragging on for a very long time. It would be unfortunate to miss out on three recommendations or three improvements to the bill.

    Thank you for your question.

    The board's position on the 18 recommendations has never changed since the Lamer Report was tabled. One of my obligations as agency head is to provide support, or not to provide support, when those recommendations concern the board's work. The board's position on the recommendations concerning the board has never changed, and we have provided the appropriate authorities with the board's support or position on those recommendations.

    Do you support them all?

    We support them all, more specifically those directly concerning the board.

    Recommendation 85, which would enable members to complete their caseloads if their terms are not renewed, is outstanding. A number of other administrative tribunals have a similar clause or provision.

    One of the board's obligations is to act quickly. As you'll understand, as each of the board members handling a specific case is independent, if a case had to be reassigned to someone else, the review of that case would start over, or the newly assigned member would have to start that review over from scratch. That would therefore compromise the quick handling of the case, and that would consequently increase the time it took to render a decision. So we believe this is very important.

    As for Recommendation 86, which concerns the annual report, once again, we are living in an era of convergence and process integration. Federal organizations increasingly have to integrate their business plans and human resource plans. Most of those plans are aligned with the fiscal year. By law, the board reports on the basis of the calendar year, as a result of which you have to read two of the board's annual reports in order to get an overall and integrated idea. We think this is a natural alignment that changes no aspect of the board's mandate, but that would promote clarity and give all those who are interested in what the board does an immediate and unidirectional idea of the board's business.

    As for Recommendation 87, which concerns the subpoena power, the act, as I mentioned, provides for a duty to act quickly and a duty of non-formality. That means that the committee has a certain power. I understand that, by law, National Defence must provide us with all the information it controls where a grievance has been filed. We're not talking about that here; instead we're talking about the issue of information where the Canadian Forces do not control the information.

    The board actually has two powers, the first being the power to request. Where a request is denied, it has no other power but to go directly to a hearing. Not only does that compromise the speed with which a case is handled, because it is much more complicated to hold a hearing than to subpoena someone to file a document, but also, on the scale of available measures, we only have two choices; we request or we go to a hearing.

    I want to point out that, on three or four occasions this past year, we have virtually had to hold a hearing to obtain information that was not necessarily controlled by the Canadian Forces but that the board needed.

    The board perceives this as an intermediate tool on a graduated scale of its powers to facilitate its work and cases.

    These three recommendations change nothing in its mandate.

    I hope I answered the question, Mr. Chairman.

    Very well; thank you very much.

    Mr. Dryden, do you want to continue?

    I'll move to the next round.

    Thank you.

    Now I give Mr. Bachand the floor for seven minutes.

    Thank you, Mr. Chairman.

    Welcome, Mr. Hamel and Ms. Maynard.

    Mr. Hamel, in your message, you say that, as a result of your distinct role, the Canadian Forces Grievance Board strengthens members' trust in the Canadian Forces' grievance process and enhances its fairness

    I come from a union background. The procedure on the civilian side, in the health field where I come from, for example, is really different from yours.

    First of all, you have no umpire. The top level of power, that of the commander. If things don't work out at that level, you go to the ultimate power, the Chief of the Defence Staff.

    Are there only those two levels?

    Thank you for your question.

    Mr. Chairman, the process naturally does not come under my responsibility, but we have an in-depth knowledge of it by default. So it's a formal two-level process, which does not exclude informal measures. However, when a grievance filing is formalized, normally—you're right—there is an initial authority that is usually the one that has the power to decide the issue. When the complainant receives the decision from that primary authority and is dissatisfied with the response or the proposed solution, he can ask that his case be reviewed by the Chief of the Defence Staff. The matter is referred to him as the authority of last resort, that is the authority that will issue a final and binding decision. Beyond that, only a judicial review in Federal Court can be conducted with respect to the grievance, but not on the merits of the case.

    There are indeed two decision-making levels, and at the same time there are all kinds of ways and means to resolve the dispute informally.

    The criticism I most often hear, Mr. Hamel, stems from the fact that the complainant must appear before the person against whom he is filing a grievance. You call it the "initial authority", but does the complainant have to appear before the commanding officer?

    Mr. Chairman, exchanges regarding the grievance process are made in writing. This is an arbitration process, if you will, in the context of which exchanges are made in writing. The board has the power to hold hearings and to ask people to appear before it. Apart from that, submissions are made in writing.

    As for the initial authority, it is hard to say what rank that person will have. It has to be at least the individual's commander or supervisor or the person who can deal with the issue. It can't necessarily be concluded that it's always the commander. It may be him, but it may also be a person who is able to provide a solution to the complaint.

    May I make a comment? The commander or the person who makes the decision, the initial authority, can never be the person against whom the grievance is directed. So if the commander has made a decision and that person complains about it, that person has to go through the commander to say that he or she wants to file a grievance, but the commander may not act as the initial authority.

    Another officer has to do that.

    The commander forwards the grievance to the next authority, but remains informed. As a result of the chain of command in the military hierarchy, it is very important that the commander be aware of the fact that the person disagrees with him. That also affords the complainant and the commander the opportunity to resolve the issue informally if they can. Otherwise, it has to be handled by someone other than the commander.

    That may be the greatest criticism I have to make: it's the chain of command that ultimately decides. There aren't a lot of appellate bodies, and they all consist of military members. I often hear it said that senior officers tend to respect first-level decisions, whereas that is not the case in the public sector. There really is an independent umpire and an independent committee.

    I haven't yet asked whether complainants can be assisted. Can they be assisted by someone who can help them in their efforts?

    Yes, they can request an assistant—

    A legal assistant?

    Not legal, no.

    Why?

    That's because lawyers in the Canadian Forces are military lawyers and they advise the chain of command.

    So they may be assisted, for example, by a lawyer, or rather a military lawyer.

    No, civilian: they may be assisted by a civilian lawyer.

    Can they be assisted by a military lawyer?

    Not usually.

    All right. That's what people complain about, the tendency to protect the various levels as you move up the hierarchy.

    Mr. Hamel, you say this distinction increases military members' trust in the process. I've met a lot who don't really trust the process. Let me be clear: this isn't an attack on you or Ms. Maynard. In your view, will Bill C-41 enable us to make certain amendments in order to change the process that requires complainants to deal with individuals at various levels?

    Mr. Chairman, that's a question I will have to think about a little more at length because it's not part of Bill C-41. However, it reinforces the argument I made earlier in my address. The value added by the board, which is completely outside the Canadian Forces, is this notion of independence, that it is outside the chain of command. However, the regulations restrict our ability or do not allow us to exploit the full potential of that value.

    That's why we firmly believe that, before the Chief of the Defence Staff renders his decision, he and the complainant—because we're talking about two parties here—should get the benefit of the board's review. I believe that, if the board were to be required by law to examine all cases at the first level before the Chief of Staff renders his decision, this notion of fairness, of transparency, would be guaranteed for all members of the Canadian Forces, regardless of the topic or subject of their grievance. The board adopted this position in 2000.

    Thank you, Mr. Hamel.

    Thank you, Mr. Bachand.

    Mr. Harris, go ahead, please.

    Thank you, Chair.

    Mr. Hamel, I thank you for your presentation today.

     I appreciate your comments about the expectation that the board would be external to the forces and be seen as independent; however, I have a little problem in one sense. The way I see it--and I suppose I'm similar to Mr. Bachand in this--is that the military are not unionized, they don't have representation, and they rely on a process such as this to settle what are known in union circles, and in the military as well, as grievances.

     I understand that most of what you deal with relates to issues having to do with medical and financial matters, issues of release of soldiers, and things that obviously impinge on their personal well-being and their future, but they're really of a contractual nature and they involve their rights.

    What disturbs me, I suppose, is that the complement of your board is not truly civilian. They may be ex-military. I understand that you have a number of ex-military officers who sit on your board. Maybe all of them have military connections. Wouldn't it be fairer to have a truly civilian...?

     This is part of civilian oversight of how our forces members are being treated within the operation. Shouldn't it really have people who are from civil society, who have an understanding of employment matters of how people should be treated and to what kind of standards people should be treated in society in general, not just in the military?

    It seems that your board, although it has the name of being external and is talked about as being independent, in fact has a very significant military tone to it.

    Thank you for your question.

    Mr. Chairman, the board is absolutely in favour of the principle of independence. It's a principle essential to its proper operation. I should mention once again that the board enjoys institutional independence, that is to say that it suffers no direct internal or external interference from anyone. The board receives its allowances directly from the Treasury Board; there is no interference in its institutional independence.

    It is also important for the board to protect or safeguard the independence of its members. The board has put in place a series of measures designed precisely to preserve their independence. For example, the internal assignment of caseloads is done in a centralized manner. Board members may recuse themselves or have an obligation to do so where there is an appearance of conflict, whether that appearance is proven or not. Furthermore, there is no interaction between board members who must consider a case and the organization of the Canadian Forces or National Defence. There are people who work for them, who assist them in their work, who make the necessary contacts and who find the information for them. So they are really isolated. They moreover work across Canada and use their work teams to examine cases. This is a sacrosanct principle.

    Now one may wonder whether the fact that certain board members have a—

     Can I interrupt? I only have seven minutes, and you've taken up a fair bit. You're really avoiding the question.

    I didn't question the institutional independence of your board. I suggested to you that a true civilian oversight body would be absent military personnel, who may have total institutional independence but may have standards and influences and cultures associated with the military. It may well be. We've heard examples of it in the past, such as the “suck it up, soldier” business about PTSD, which was prevalent in the military and is now being denounced. A civilian oversight body might not have that same attitude about certain matters that are medical or financial. Many think that standards could be better in terms of how soldiers are treated in terms of their pay and benefits as well as in terms of whether they're released properly, or even whether they should be released or should be allowed to stick around to get the benefits after being there for ten years, for example, instead of being discharged at nine years and ten months.

    There are a whole bunch of issues. There may be institutional independence, but if it doesn't involve civilian oversight and if the experience and history and life of the people on the board is totally military, I have a concern. Do you not agree that it could be a problem?

    Thank you for the clarification.

    Mr. Chairman, I believe that the board's statistics speak for themselves. Since it was established in 2000, regardless of the membership of the Canadian Forces Grievance Board, an average of 40% of the cases that have been referred to the board over a 10-year period have produced positive recommendations for the complainants. In other words, the board's recommendations were in favour of the complainants. To be more specific, last year alone, the board's recommendations went in favour of members in 45% of the cases the board considered.

    If we want to go a little further, regardless of the board's recommendations, whether they are in favour of the members or of the original decision, the Chief of the Defence Staff has agreed to 90% of the board's recommendations.

    It's true that, on the one hand, there may always be a certain perception that the board members are related to the military field, but that's a perception. In my view, military service does not lead to an absence of neutrality. The fact that a board member has served in the Canadian Forces cannot mean an absence of neutrality on his or her part. I prefer to observe the statistics and to note that, historically, the decisions have been half in favour of complainants and half against them. Last year, the percentages were 45% and 55% respectively. We also note the weight or importance that the Chief of Staff attaches to the board's work: he concurs its decisions in 90% of cases. As for the 10% of decisions in which he does not concur, that's often as a result of a matter of interpretation or discretion on his part.

    Thank you, Mr. Hamel.

    Now I give the floor to Mr. Hawn.

    Thank you, Mr. Chair, and thank you to our witnesses for being here. I have a fair number of questions, so I'd appreciate some fairly concise answers.

    I think there may be a misconception by some here. The grievance process is not normally against a person: it's normally against a regulation or the application of a regulation, such as release conditions and that sort of thing. Is that fair to say?

    Yes and no. There may be certain personal decisions, particularly in harassment cases. As a general rule, however, those decisions concern the interpretation of regulations, rights, social benefits and things like that.

    As far as the process goes, it can start at the unit level. Correct me if I'm wrong, but it doesn't go from that decision straight to the CDS. It goes through various levels before it gets to the CDS. Is that not correct?

    There is indeed an intermediate level, Mr. Chairman. Once the grievance has been submitted to the commander, the initial authority intervenes.

    The initial authority will basically consider and determine the grievance on its merits. When a member is not satisfied with either the response or the remedy provided to the griever, he or she may actually submit his or her grievance to the next level, which is the final level. There is an intermediate step or an initial step, which does not preclude the commanding officer from initially trying to resolve the issue administratively.

    From my previous experience, if the CO couldn't handle it, the griever could then go to the wing commander, then go to the commander of the command, and then go through other steps. Is that not the case anymore?

    They took that away.

    That provision was taken away by Bill C-25when it received royal assent. It removed the minister from that process. It was a chain-of-command process with seven levels. It was brought down from seven levels to two. It also involved the creation of this board and the removal of the minister from the chain of command and from adjudicating grievances.

    On the three recommendations that were not part of Bill C-41, is it not accurate to say that the one having to do with the fiscal year versus the calendar year and the one related to the board's completion of the caseload have been accepted, but are being put off until the current MPCC process is finished so that these recommendations would not be seen as interfering with that process? I believe that the department has accepted these recommendations, but is putting off the implementation of them until the MPCC process is over. Is that your understanding?

    I believe that is an understanding of the issue. The board's position has not changed. The department and the Canadian Forces know their positions. However, I'm not in a position to tell you with any accuracy the reasons why the recommendations are not part of the bill. Our position is known and remains unchanged.

     I know that to be true, but you're not aware of it?

    I know that, in principle, they have been accepted by the department, but I can't explain why they aren't included in the bill.

    Okay, then, we've closed that loop.

    In the case of the subpoena powers, have there been problems in the past, in that subpoena power has been needed?

    We have never had to revert to that use of power. Over the last year, we came close on several occasions to having to revert to a hearing in order to acquire a single document. We understand that there's a statutory obligation on the department to provide the board with all the information within its control. The subpoena would be a great tool for acquiring information that is not under control of the Canadian Forces and for which the only other power at the board's disposal is a hearing. We believe that having such a tool to acquire a piece of information or a testimony would be effective in accelerating the process.

    I understand, but it's not based on experience. It's based on a prediction of what might be good in the future.

    With respect to civilian oversight and the makeup of the board, the fact that a person has been in the military doesn't disqualify that person from adjudicating on military issues. Do you think that an all-civilian board with no military experience would have enough understanding of order, discipline, and the military ethos to be able to adjudicate properly? The military are held to a different standard.

    Thank you.

    With regard to the board's independence and make-up, that's an interesting question in that I would characterize the model adopted by the department and by the Canadian Forces as highly specialized. It's a stand-alone complaints management model, in a way, in the context of which a number of agencies address very specific mandates and very specific cases. In the case of the board, it's restricted to military grievances that concern the lives and benefits of military members on a day-to-day basis. Some raise the argument that was advanced a little earlier. Others say, on the contrary, that it is important to have a certain knowledge, to understand the organization, provided you respect the principle of independence and do not interfere with the issues of the board.

    This interpretation can work on one side and on the other. I can tell you that, when a case is assigned to me, it is very easy for me to ask the tough questions, to know to whom and how to ask them. I can't answer on behalf of other people, but I maintain what I previously said, that military service is not a factor that detracts from an individual's neutrality. In my opinion, you can't make that connection, draw that conclusion, simply as a result of military service. In fact our statistics tend to prove the contrary.

    It must also be understood that the board plays no direct role in the appointments of people and selection criteria. All that is the responsibility of the Privy Council Office and the Governor in Council. The board's role or my role, if you prefer, boils down to making recommendations on renewal, once people are appointed. That's the only role I play.

    Thank you, Mr. Hamel.

    I now give the floor to Mr. Dryden.

    Thank you, Mr. Chair.

    I'd like to go back to the same questioning that Mr. Harris began. I understand about independence, I understand about neutrality, but I don't think either is the issue. I think that people can be part of an independent structure and can be absolutely neutral in terms of their focus, outlook, and understanding of their mandate, as well as just the basic attitude that they have towards things, but I think it's something beyond that as well.

    It's the nature of one's experiences and the kinds of understanding that you develop out of those experiences that determine the attitudes you take. You can act very independently and you can act neutrally, but if you have a certain set of experiences, backgrounds, and understandings, that's what you're more likely to apply.

    We've all been part of organizations that have been that way. Part of my background in sports.... What is always said when a question comes up that challenges anything is, “Well, it's a part of the game. It's just a part of the game. It's the way we do things. It's the way we've always done things. It's the way we've done things forever. Others wouldn't understand”.

    You get into a lot of boxes because of that and you end up in a lot of unfortunate and inappropriate places because of it. I would think that at the very least the board would be include some civilians, if not all civilians, to bring to that board another set of understandings and ways of doing things--people who may say, “I appreciate that this is the way it has always been done, but really, it's just not appropriate”.

    Why is there not at least some civilian presence on the board?

    The board's make-up varies over time. If memory serves me, there was a time when certain members had military experience, whereas others did not. Currently, in 2011, members who have been duly appointed by the Governor in Council all have military experience to varying degrees. At the risk of repeating myself, I will say that I do not control appointments. That's the role of the Governor in Council. However, I can tell you that that not always been the case. That is the case today, but will it be the case for the next replacement? I don't know.

    What you're saying now is that so far as you know, everybody who is on the board has some military experience. Is that what you're saying?

    That's the current makeup of the board, but in the past that may not always have been the case.

    Exactly, but I would point out that, when I talk about the board members, I'm not just talking about those appointed by the Governor in Council. That doesn't include the board members, that is to say the support team of the members I referred to earlier.

    There are six members. Two are full time, that is myself, the chairperson and the vice-chairperson and four are part time, in particular the other vice-chairperson. These are the members who make the decisions concerning a case and who sign the recommendations to the Chief of Staff.

    The infrastructure supporting these six members consists of people from all fields. Some are civilians, others military members. They are mediation specialists, people from legal services and so on. A whole range of tools is at the disposal of board members—

    My time is just about up. In terms of the makeup of the board itself—not the support part, but the board itself—I think that having a variety of experiences, and not just military experience, is something to look into quite seriously in the future.

    I have one quick question. In your statement, you talked about the individual grievances and how your work enables you to identify trends in areas of dissatisfaction. Can you tell me what some of those new trends in dissatisfaction or problems might be?

    The board always has a concern to inform decision-makers about problems on a proactive basis. In other words, why wait until a problem is raised through a grievance when it is possible to solve it upstream and nip the problem in the bud? It may be a recent problem concerning relocation or a stricter interpretation of Treasury Board provisions on relocation.

    That's not my question. I asked for trends, but--

    Thank you. Your time is up.

    I will now give the floor to Ms. Gallant.

    Thank you, Mr. Chairman.

    To our witness, when do you expect a report on the pilot project you referred to?

    The pilot project started on January 1. It was authorized for a minimum six-month period. In September or October 2011, we should, in principle, have enough cases to rely on decision-making authorities for them to determine whether the model should be integrated and thus become the standard. In short, by the fall of 2011, we should have a better idea of the matter.

    All right. Thank you.

    I'll go back to Mr. Hawn's question on the makeup of the board and the requirement to understand the military. You mentioned what the current makeup is. Would you say the preferred makeup of the board would be a balance of civilian and military experience?

    I would say a balanced board constitution is one of the options available. You could go with all civilians, all military, or a balance. It could go anywhere in between. They would all have their advantages and disadvantages, in my view. Depending upon the angle from which you're looking at it, some would find benefits or disadvantages regardless of the model, whether it's all civilian, all military, or a mix. There are pros and cons to each model.

    I believe there will be opportunities later on to review items like that--not through the review of this bill, but when the next five-year review or next seven-year review comes forward. This would of course require further study and evaluation of those advantages and disadvantages. The board would have to seriously look at these options, and, if invited, they would contribute to such a debate also.

    Irrespective of the model you're looking at, I would say you could find advantages or disadvantages to any one of them.

    Are you saying that from your standpoint there's no preference, then?

    Could I make a comment too?

    In 2000, the act was adopted and the board was created. In looking at the current act, we just realized that although it's never occurred, it is possible for current members of the CF to be appointed to the Canadian Forces Grievance Board. The Governor in Council can appoint and second these members to the board as members, but they would remain active members of the chain of command.

    That's something we will bring up in the next review of the act. We don't think that having board members who are current members of the Canadian Forces would be an appropriate way of using the appointment system, but retired members seem to be an asset that the Governor in Council has taken for the current board we have.

    On average, what number of cases would the board deal with on a yearly basis?

    On average, it would be about 100 cases per year, which represent 40% of the caseload at the final authority level.

    Where did the recommendation come from to change the name of the board? Was it the soldiers making comments or having concerns?

    Mr. Chairman, this is an issue we raised outside of the Lamer report, and it is pursuant to some activities the board is performing. We noted that in correspondence sent to the board, we were looked at as belonging to the Canadian Forces. The name “Canadian Forces” Grievance Board, by association, makes it a part of it very easily.

    During base visits, people were surprised we were not part of the department and that we were not part of the Canadian Forces. We have been spending a tremendous amount of effort and resources in trying to explain that.

    That's one of the reasons this name change will bring greater clarity to who we are and what we do. So far it has been

like a ball and chain. We constantly have to explain that.

     It's not only us. The Canadian Forces also have to explain it on their part. It creates a problem on both sides, both for the Department of National Defence and the board.

    The concern was that perhaps you were not totally independent.

    The concern was that from the main perspective, we were a part of the organization.

    Thank you, Ms. Gallant.

    Now I will give the floor to Mr. Paillé.

    Thank you very much. If I have any time left at the end, I will share it with Mr. Bachand.

    Thank you for being here. You will correct me if necessary, but I saw that you stated on two occasions in your text that amendments to the National Defence Act will be necessary in order to implement some of the recommendations not found in the bill. Do you believe certain recommendations could be included in Bill C-41 so that we aren't required to amend the act a second, third or fourth time?

    Thank you for your question.

     That is indeed a possibility. I also note that, when the minister appeared on Monday, he said he was open to recommendations from this committee. My role is to tell you that three of those concern the board's operations, without affecting its mandate. Consequently, they do not affect the aspect related to the committee's recommendations; these are operating tools. There is an openness; there is a possibility. So it's a necessary tool for the board. We've been working without it for 10 years; so you have to watch out. We're getting there, but now there's a possibility. If we want to include Judge Lamer's recommendations in Bill C-41 to a maximum degree, this is the opportunity to do so, unless you incorporate those recommendations in another bill.

     Last week, the JAG was here as well when we met with the minister. My colleague Mr. Bachand put a question to the JAG, who told us that, in his view, we would not have to pass another bill in order to make amendments. Unless I'm mistaken, you think it would be much more effective to include those recommendations in Bill C-41 right now, which would mean we would not have to redo a certain process or a certain amount of work in the next few years.

    That's the position the board has always defended. The board's powers are set out in the National Defence Act. There is a section in that act on the obligation to file an annual report. The terms and conditions respecting board members are also set out in the National Defence Act. None of those sections confers any discretionary authority that, in my view, would make it possible to use regulations to extend that. Since these three sections are part of the act, I believe a change should be made to the bill. I'm not a legal expert; it's Ms. Maynard who—

    That's correct. If we want to put these three recommendations in place, we need an amendment to the act.

    Could that be added to Bill C-41?

    I'm sure it can.

    Perfect, thank you. That answers my question.

    I'm going to continue for two minutes.

    Do the three recommendations not included in this bill originate in the Lamer Report?

    Absolutely. They are Recommendations 85, 86 and 87 of Chief Justice Lamer's Report.

    Now I have a few brief questions. Perhaps we could ask them one after the other.

    How big is your annual budget?

    It's approximately $6.4 million.

    Your board consists of six members: a chairperson and one full-time vice-chairperson, as well as four part-time directors.

    They are four part-time members.

    You have an infrastructure. Who drafts the decisions?

    We have a business infrastructure because with institutional independence, come all the obligations. Our board has the same obligations. Although our agency is small, it has the same obligations toward the central agencies as the Department of National Defence. Half the board's staff, more or less, is assigned to postponed tasks and to the obligations that are the price to be paid for institutional independence. The other half are support staff for the six members. Those people do research and draft—

    —the recommendations.

    In fact, the member issues his instructions, his directives, and then the writing as such is done in accordance with the internal, legal review process, and so on.

    Is there a grievance case law? In the civilian field, can one consult a data base where all decisions rendered are filed so that any possible changes in doctrine and jurisprudence can be detected?

    Can one access all the decisions?

    All the board findings are confidential because the names of the complainants cannot be disclosed. However, all the summaries of our recommendations and findings are on-line. You can even do a search by subject. That's also how we can detect subjects that repeat. There's also a list of all our systemic recommendations. For example, earlier we were talking about

trends or recommendations on systemic issues. We have a list of all of those on our website.

    All right.

    As the Chairman is busy, I'm going to continue.

    No, Mr. Bachand, your time is up.

    We will now go to Mr. Braid.

    Thank you, Mr. Chair, and thank you very much to the witnesses for being here today.

    If I have some time remaining, I will share it with Mr. Boughen.

    I want to continue the thread of discussion with respect to the board members themselves, the experience they have, their background, and the makeup of the board.

    Are there any current members of the board who were not formerly in the military?

    Currently the six board members all have, to some degree, previous military experience.

    Was that In uniform? Do all six have experience in uniform?

    Yes, it was in uniform.

    Okay.

    With respect to those board members, do they come directly from their uniformed military experience to serve on the board, or is there a span of some civilian experience so they end up bringing a mix of military and civilian experience anyway?

    Mr. Chair, I would say it's a combination of both. You will have some members who will retire in order to be appointed.

    You have to understand the process by which the Governor in Council puts offers of employment on the Governor in Council's website. The criteria are there. If military members are entitled to apply in a certain competition, and if they meet the criteria as set out by PCO and meet the different thresholds, they may get interviewed, and that may lead to an offer of employment. Some of them may well have to retire in order to apply; others will have been retired for some years. They will apply for the same job postings available on the Governor in Council's site.

    One of the important things that Madame Maynard raised is that there is a provision in the National Defence Act for the Governor in Council to appoint a serving member to serve on the board while in uniform. That, for us, would have a clear and direct impact on its independence. Although I admit that this issue was not raised by the board in 2003 when Justice Lamer went around, it will be the next time around. This is an issue that I'm concerned with. This is an issue the board is concerned with. We will recommend that subsection 29.16(10) be removed from the act.

    I will change gears somewhat. With any board or administrative tribunal, the case processing time is always a critical measurement. Has the case processing time under the board gotten any better? Has it improved in the last year or so? Has the pilot project improved case processing time? What's been the experience?

    On the first question, Mr. Chair, our timelines have significantly diminished. Initially, 10 years ago, for the year 2000, our average time was around 25 months. Three years ago we were down to 9.8 months. That's from the time we received it to the time the file was out. We reduced that to 6.1 months two years ago. Last year our average time on hand was 3.1 months.

    That includes not just the time for review, but also all the provisions for procedural fairness. The board is held responsible for procedural fairness, a part of it at the final authority level. A significant amount of that time is counted towards the board. Of course, we can actually do some concurrent activities, but we also take care of a greater challenge.

    Right now, on average, the time is 90 days from the time we receive a file to the time it's out. Last year, for the first time in the board's history, the board was current in reviewing files that had been referred to it in that same year. I think we reached that in October of last year. In October 2010, for the first time in history, we were reviewing files that had been referred to us in 2010. I expect this level will be achieved this year around the end of March or early April with that 90-day timeframe.

    Thank you, and congratulations on that progress.

    Thank you, Mr. Hamel.

    I will now give the floor to—

    There's no time left.

    You still have 25 seconds. Take your time.

    I'll talk fast if you folks can listen fast. We'll be okay.

    What you've shared with us, sir, is extraordinary in terms of shrinking the time. Could you expand on that? How did you do that? You've shrunk it down by 80% or so.

    We reduced it by 70%, or close to that, and the quality has not been affected. Actually, the 45:55 ratio has not been affected by it. The deferrals of the Chief of the Defence Staff, so far as we've received his decisions on these cases so far, have not changed. They're seeing that the trend is there.

    Without going into great detail, we've basically overhauled our internal system. We've reverse-engineered. We've reversed the way we approach a case. The involvement of the board member basically went from the end of the process to the start of the process: the board member now takes the lead on the problem that he's facing. He provides clear directions, a little like a judge would when he has a case, and he uses the clerks and the people around him to do research. We've reversed from an end-of-process approach to a front-of-process approach. That has proven so far to be extremely efficient, in a nutshell.

    Thank you, Mr. Hamel and Mr. Boughen.

    I will give the floor to Mr. Wilfert. You have five minutes.

    I thought it was seven minutes, but okay; thank you, Mr. Chairman, for your generosity.

    Through you, Mr. Chairman, I was intrigued by your final comments with regard to this innovative project and the January 1 date. Since that date, the forces have begun referring to the board any unresolved grievances that reach the final authority level.

    First, could you tell us the genesis for this approach and how this new approach will be measured? Who's going to measure it? Is it going to be the board? Is it going to be outside?

    Next, could you tell me what you see as the benefits of this new approach and what the timeframe is in terms of the evaluation?

    Finally, are there any examples you could give us as to what is now coming to you that may not have been referred to you in the past?

    Mr. Chair, the genesis of the pilot project is a consequence of a working group that was initiated by the Canadian Forces and on which we were invited as experts. We had the Lamer report's concerns on the timeliness issue and we were looking at how we could make it better. Also, benefiting from 10 years of the board's findings and recommendations and having seen the level of deference that the Chief of the Defence Staff gives to the work of the board, we also turned over that critical stone to ask ourselves if we could do more.

    As a perspective, in 2000 there were more than 1,000 cases at the Chief of the Defence Staff level. There was a huge backlog. When the board was created, it instantly received a delivery of about 300 grievances. That was on June 15, 2000. It was an instant backlog.

    Article 7.12 of the QR&Os--those types of referral--were not such a big issue at the time, because there was more than enough work at the board at the time to be extremely busy under the constitution that it had back then. With the number of cases that then started to be referred to this board, we also saw that in these cases, the board's F and Rs--their findings and recommendations, their report--received the same kind of deference from the Chief of the Defence Staff, so we asked, after the Lamer report and having eliminated the backlog at the Chief of the Defence Staff level, how we could maximize that system. One of the options was to have all the members benefit from an independent and external review when the Canadian Forces were unable to resolve the issue internally. We thought it was a great concept; we agreed to that concept and we contributed to it. That's the genesis of it.

    It was approved by the Armed Forces Council, which is the highest authority level within the Canadian Forces. They authorized a pilot project, and we will report back to them. It may not be me, but we will contribute to the report. The administrator of the system, which belongs to the Canadian Forces, will report back to the Armed Forces Council in the fall, I assume. The Chief of the Defence Staff has already, in the minutes of that AFC report, said that this is promising, and if it works, it may well become the way ahead. We support that because, of course, although it does not expand the board mandate, it provides that external review for everybody, and it is no longer by criterion or type. Irrespective of what you grieve, you get the benefit of a board's review.

    Who's doing the evaluation of the success or failure of this approach?

    It is the Canadian Forces.

    It's the Canadian Forces. Are there any specific examples?

    The types of grievances we're now getting under this process are promotion grievances and administrative measures. Even though they're not disciplinary measures, the CF are allowed to, for behavioural or performance issues, give a recorded warning and C and P--

    That's counselling and probation.

    We never used to have counselling and probation. We had them once in a while, but now we're going to get all those--

    They include personal evaluation reports, removals--

    There's relief of command, removal--

    --removal of command in Canada--

    --and repatriation from Afghanistan. We've had a few of those. Those types of grievances that are usually within the chain of command prerogatives and that were not referred to the board before are now being referred to the board.

    What has been the reaction of those whose cases have been brought before you? How do they see this approach?

    Members in general are very happy when the board reviews the grievances, whether we are denying their grievance or supporting it or supporting a grant, because they, for the first time, often see a reason and an explanation providing both sides of the picture. We've seen grievers withdrawing their grievance, saying that finally somebody is giving us a full answer to their issue. So far, it's very positive.

    Thank you for that.

    Thank you, Mr. Chairman.

    Than you very much.

    I will now give the floor to Mr. Bachand.

    Mr. Hamel, you said in your presentation that, with respect to referrals to the board, you were limited to only four types of grievances. Can you tell me those four types?

    Absolutely, if no one quotes me word for word.

    First of all, there are all the administrative decisions that result in release, thus employment termination measures, if I may call them that. Then there are all the grievances that concern harassment. In addition, there is everything pertaining to financial aspects: compensation, social benefits and so on. Lastly, there are grievances involving certain very specific policies, such as racism and political involvement by members of the Canadian Forces. There are three or four very specific policies respecting which there must be a referral.

    In addition, referral is mandatory for any decision in which the Chief of Staff is personally involved. He may therefore not review his own decision without going through a review outside the board.

    Those are the four types of grievances that we hear on a mandatory basis.

    Ms. Maynard, has another series of concepts or definitions of grievances just been added? Has that been done?

    That has been in effect since the first... We occasionally receive that type of grievance; they are subject to a discretionary referral.

    A discretionary referral?

    The act provides that certain types of grievances are determined by regulation. In addition to that, according to the regulations, the Chief of Staff may decide, on a discretionary basis, to refer another grievance to us. That's what's called referrals that are not mandatory, that are therefore discretionary. Since January 1, that clause has been used to send us all the grievances for which members are not satisfied with the decision or internal review.

    So that goes beyond the four types.

    Indeed. That started on January 1; it's brand new. In principle, we should receive for review approximately 85% of all grievances forwarded to the Chief of Staff. We now refer grievances that historically fell solely within the chain of command, for which a decision had been made internally and which we did not have the power to review.

    Now you have that power.

    Yes, since January 1.

    Is discretionary review also provided for in the regulations?

    Yes.

    All right. I believe that neither the members nor the committees of the House can make recommendations respecting the regulations, unless I'm mistaken.

    No.

    You're a lawyer. Can you confirm that for me?

    As far as I know, this committee's mandate is to review the National Defence Act.

    The act, not the regulations.

    Now I have some questions for Mr. Hamel about the importance of neutrality.

    You are appointed by the Governor in Council. Is it for a four-year term?

    Yes, my term is for four years.

    Are salaries determined by the Treasury Board?

    It's the normal pay scale; it's based on the position level. It's available virtually everywhere. My position is a GCQ-5 level position.

    How much does that represent: $1 million?

    I'd like that. I believe the pay scale for a GCQ position ranges from $140,000 to $160,000.

    You almost have the salary of an MP.

    I've never looked at MPs' salaries.

    Does the board have the power to revoke? Can it dismiss someone for misconduct?

    Board members, including the chairperson and the vice-chairperson are appointed and hold their positions during good behaviour. They are appointed during good behaviour. However, a term can be terminated. We do not have security of tenure, but there has to be a serious reason to dismiss the chairperson, the first official and a member. In my case, I was appointed for good behaviour.

    Does the Minister of National Defence make recommendations to the Governor in Council? Do they then proceed almost automatically, as usual? Do you know?

    I can't answer that question. I took part in the competition, then I had an interview. I was contacted and asked questions. When I won the competition, I was informed of that fact. What happens then, from the moment a candidate has made it through those stages, is the responsibility of the Privy Council Office and the Governor in Council.

    Very well, thank you.

    Thank you, Mr. Bachand.

    I will now give the floor to the last member to speak, Mr. Harris.

    Thank you, Mr. Chair.

     I appreciate that when you were talking about the change in the timelines, you were talking about reviewing cases from the time they come to you to the time they are disposed of. One of the big criticisms of the grievance process has to do with what happens before it gets to you. It's supposed to be resolved in 90 days, yet the average time seems to be up around 18 months. I know of one fellow who complained that he changed from the reserve force to the regular force and had to move his family, and it took two years for his move to be reimbursed, even though he was fighting in Afghanistan. That seems to be wrong. It doesn't seem to me that board members would have to have a lot of military experience to decide that this is wrong and ought to be fixed.

    There may be some issues that have a military overtone, but we're talking mostly about bureaucratic things, even in the area of promotions. I've had 30 years' experience as a labour lawyer. You have people adjudicating these matters who are trained arbitrators. They may not be working in the public service or the factory where the grievance comes from. These are really labour-relations matters, so I'm wondering where the military experience comes in. You're not dealing with discipline, although you talk about administrative measures here. What that requires is adjudicative knowledge and ability, as opposed to military experience. I say this to combat some of the comments from over this way.

    What about the process itself within the military, the long time it takes to resolve what are often straightforward matters? Why does it take so long, and is there something that could be done, legislatively, to deal with that? I notice that a recommendation for a 12-month time limit was not accepted. That was recommendation number 74. Would you care to comment on that?

    We support Justice Lamer's recommendation and we believe that a one-year timeline is reasonable. We firmly believe in that. Unfortunately, the Canadian Forces grievance system does not belong to the board. I have limited visibility on those timelines, but on those grievances for which I have full visibility--i.e., that 40% portfolio--I can say that in 2009, from the date of submission to the date the Chief of Defence Staff rendered a decision, the average time was 28 months; in 2009, the board took six months. In 2010, so far, on the decisions we have received--those cases for which we have visibility--the overall average dropped from 28 to 22 months.

    If I can just jump in here, are you talking about the timeline after you render your recommendations to the CDS and CDS gives you a decision? What's that timeline, typically?

    Currently, in 2009-2010, what we have received mimics our timeline. In 2009, it was roughly six months once we issued our F and Rs, our findings and recommendations.

    In 2010, so far, it's three months. That is the time from the moment our work is done to the moment that the Chief of Defence Staff renders his decision.

    It was three months last year and six months the year before. That's roughly the same timeline as ours. It was six months last year, which is three months in our hands and three months with the Chief of Defence Staff, and that is a chunk of the 22 months, so there's a 16-month period prior to a grievance reaching the final authority. During that time I have no visibility. I don't know where in the timeline it is.

    That's the number I'm familiar with, the number that has been suggested.

    It seems to me--and you can comment on this if you wish--that you folks are doing all the heavy lifting. If you're doing an independent external review, if you do your investigation, if you gather all the evidence, if you look at all the factors and render a reasoned decision, the CDS doesn't have to do that all over again. He just has to say yea or nay.

     Why does it take him as long to say yea or nay to a reasoned recommendation as it takes you to do the investigation, interview all the witnesses, consider all the policies, come up with a reasoned decision, and say, “Here, General, is our recommendation”? It still takes three months, on average, for them to render a decision.

    Mr. Hamel, please be brief.

    Mr. Chair, my mandate really stops when I issue my F and Rs. After that I have limited visibility, except when the chief complies with his obligation to inform the board with a copy of his decision. What happens in between is not in my mandate, and I have no visibility as to what happens, so I cannot tell you why there is a delay. I can only tell you that once we've issued F and Rs, we wait for the response--because there's a requirement--and we measure the time in between. That's all I can say on this.

    Thank you very much, Mr. Hamel.

    Mr. Dryden, do you have a brief question?

    I do, just quickly, on what I was trying to jam in as a question before, which you didn't really have a chance to answer.

    It's just a matter of curiosity. Are there certain trends to the nature of those grievances? If so, what would those be? What are you seeing more of now than you would have seen a couple of years ago, or that your predecessors would have seen years before that?

    Mr. Chair, there is actually a very good example, and it's probably très approprié au moment où on se parle.

    Very recently the board has seen a trend of an expansion of benefits or a restriction of benefits approved by Treasury Board in certain areas when people are posted from one location to another. We've noted that trend, especially with regard to what's referred to as an aide-mémoire, which in certain cases either provided expanded benefits to members who were not entitled or restricted benefits to which members were entitled. That's one of the most recent trends with relocation benefits.

     We have actually put that forward to the CDS on a personal level, through a grievance, and we've raised it as a larger systemic issue. In a recent decision a couple of weeks ago, the CDS agreed with us that the aide-mémoire was not to be used as direction. He ordered a review of it, because it was creating a nightmare in the administration of benefits. Members were receiving money that would have to be recovered, and other members were not receiving money to which they were entitled, so he agreed with us.

    That's one of the most recent trends. We are certainly aware of something similar happening over the course of the last few days concerning similar types of issues, with some findings of benefits having been given without authority. That's one example.

    Thank you, Mr. Dryden.

    Thanks very much to our witnesses, Mr. Hamel and Ms. Maynard. Thank you for being here.

    This completes our 47th meeting of the Standing Committee on National Defence.

    We will see each other next week. Thank you.

    The meeting is adjourned.