Finance and Government Services — Issue No. 67 — Wednesday, July 29, 2015 (HTML)

Present: Wm. Scott Hamilton, MLA (Chair); Carole James, MLA (Deputy Chair); Dan Ashton, MLA; Eric Foster, MLA; Simon Gibson, MLA; George Heyman, MLA; Gary Holman, MLA; Mike Morris, MLA; Jane Jae Kyung Shin, MLA; John Yap, MLA

2. The Committee resumed consideration of correspondence dated July 3, 2015 from the Honourable Terry Lake, MLA, Minister of Health.

4. Resolved, on division, that the Committee, pursuant to Section 10(3) of the Ombudsperson Act, refer the Ministry of Health terminations file to the Ombudsperson for investigation and report as the Ombudsperson may see fit, including events leading up to the decision to terminate the employees; the decision to terminate itself; the actions take by government following the terminations; and any other matters the Ombudsperson may deem worthy of investigation. The Committee trusts that his investigation can conclude in a timely manner. (Dan Ashton, MLA)

The following electronic version is for informational purposes only.
The printed version remains the official version.

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
FINANCE AND GOVERNMENT SERVICES


CONTENTS
Page
Correspondence from Minister of Health	1485

S. Hamilton (Chair): Good morning, everyone. I’ll call to order the meeting of the Finance and Government Services. My name is Scott Hamilton. I’m Chair of the committee, and I guess it’s been a while since we introduced ourselves. We’ll go around the table one more time, starting with you, if you don’t mind, John.

S. Hamilton (Chair): Thank you very much. With us also today we have Lisa Hill, our research analyst, and our dutiful Deputy Clerk and Clerk of Committees, Kate Ryan-Lloyd.

S. Hamilton (Chair): Okay, we’ll start off. The first item on the agenda is continued consideration of correspondence dated July 3, 2015, from Hon. Terry Lake, MLA and Minister of Health. Following out of that is the second item of the agenda, the review of joint submission, dated July 27, 2015.

C. James (Deputy Chair): I want to say thank you, first, to the researchers. I think we provided about a week and a half for people to be able to get feedback back to us, and I appreciate that we got a very thorough submission. I think they made some very important points, and I think they’ve raised some very serious concerns.

For me, in receiving the letter, I went back to the Ombudsperson’s letter. I think that’s really the root of the discussion that we’ve been having around referral here, which is that it is our job as a committee to decide whether referral makes sense, whether it can accomplish what needs to be accomplished. We’ve had the discussion and the debate about the fact that a public inquiry would have been the first route to go, but given this, it was our job to make sure that we did what we could to address the concerns coming forward.

I’m pleased that we were able to, as a committee, come together and say that the legislative change needed to occur and that that’s occurred. But I think the submission letter, from my perspective, raises some serious concerns related to point 9 of the Ombudsperson’s letter.

One of his considerations that he wrote to us as a committee about was the issue of public confidence, and I think that’s been a concern all along — whether the public will have confidence in this process. Given the challenges that have occurred, the way this issue has been handled from the start and the very valid issues that are there, I think public consideration is important for us.

As a committee, it’s something that’s very important for us, but it’s also important for the Ombudsperson. He states that — that unless the committee is satisfied there will be public confidence in the investigation and its outcome, no referral should be made to this office by the committee. That’s his wording in the Ombudsperson’s letter.

He states that the changes in legislation are one part of what needs to occur for public confidence but that there is another piece of public confidence. That’s, again, the views of those most directly affected. I think if you take a look at that section of his letter…. He says: “In my view, the perspective of the former employees is very important, and I would suggest that the committee give those views the utmost consideration…” — including inviting them to give a response, which is what they’ve done.

I’m concerned. I’m concerned that that criteria has not been met, and in fact, via the letter that has come from the researchers, it raises more concerns.

One of the next steps that I think we could do as a committee to make sure we’ve really canvassed this issue would be to invite the Ombudsperson back to the committee to ask for his consideration of the letter that’s come from the researchers and for us as a committee to ask him whether he believes that the perspective of former
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employees has now raised concern around public confidence, which was one of the criteria there.

That would be my suggestion to open up our discussion — that perhaps our next step would be to have the Ombudsperson come and address that issue, since he raised it as one of his important criteria.

Going back to the date of the Ombudsperson’s letter, that was one of the first…. Correct me, Kate. I don’t have it in front of me. That was one of the first letters that we’d received from him — that was where he outlined the changes to the legislation necessary and concerns around process, correct?

K. Ryan-Lloyd (Deputy Clerk and Clerk of Committees): Yes, that’s correct. The committee received a letter from Jay Chalke on July 7. I have other copies next door that I can bring if anybody would like me to provide you with an additional copy today.

S. Hamilton (Chair): Does anybody require that document for referral? Everyone has it? You don’t require it? Okay, thank you.

M. Morris: On that point of inviting the Ombudsperson back here, I guess I want to speak from the perspective of an investigator, which this would be. This would be an investigation.

It’s not like a prosecution. It’s not where you have a defence counsel and a prosecutor prosecuting an event. It’s an investigation where the Ombudsperson, much like a police officer, much like anybody conducting an investigation, has carte blanche access to investigate an offence. So here we’re asking, or potentially asking, the Ombudsperson to look into the firings and some of the background events that took place that led up to the firing of these research workers and decisions made by bureaucrats in the process here.

We stand the real chance of perhaps limiting the scope of the investigation by inviting him back here and asking him…. It’s much like somebody asking me as a police officer to meet with some witnesses or meet with an accused bank robber and say: “Is it okay if I investigate? I’m going to investigate your bank robbery here, and I’m going to talk to these witnesses over here. Is that all right?”

I think we stand the chance of perhaps tainting the investigation if we go in that direction. I think the authority for the Ombudsperson under section 10 is very broad, and it gives him access to conduct an investigation and turn over every stone that he comes across in the process of that investigation to see what the answer is.

I think we should leave it at that. This process…. Not too many people — unless you’ve been an investigator, I guess — understand that. When you have a public inquiry and you have somebody standing in a public forum making a statement about what may or may not have happened for the events that are being looked at, oftentimes they’re intimidated by the public forum, and they won’t reveal a lot of the true facts that have taken place.

The beauty of a confidential investigation like this where the Ombudsperson has the ability to turn over every stone in the investigation is that he can talk one-on-one — speak one-on-one — with the people, with the witnesses, with people that are involved, and they’re not intimated by that process because they realize that they’ve been able to speak to the Ombudsperson in confidence.

I don’t think that we need to meddle any more. We shouldn’t muddy the waters for the Ombudsperson. Just let him do his job and get it done as efficiently and expeditiously as he can.

G. Heyman: First of all, I want to preface my remarks by stating that I and my colleagues initially started out, before the referral by the Minister of Health, believing that a public inquiry was the best way to proceed. We haven’t necessarily changed our views, but we have, once the referral was received by this committee, tried to discharge our responsibilities to consider very carefully the referral made by the Health Minister to answer the question about whether an Ombudsperson inquiry was the appropriate forum to address the issues that the minister himself raised.

In response to Mike…. I don’t have the minister’s letter before me. I may be paraphrasing, but if my memory serves, the minister said that there was a public interest in getting to the bottom of the events that happened in relation to the firing. That’s important. I don’t think the minister would be calling for any further inquiry than the first one that happened if he didn’t think there was a public interest and a public demand to see what happened.

Following that, we as a committee received the letter from the Ombudsperson, who went through a number of points that he felt were important to address if he was to be able to carry out a meaningful and useful inquiry and not an inquiry that was subject to legal challenge or in which the public wouldn’t have confidence or which couldn’t actually get at all the evidence he thought he would need to. We had a number of discussions here. We met with the Ombudsperson. We met with the Deputy Attorney General. We’ve addressed a number of the issues. The Chair and Deputy Chair requested that the Minister of Justice make an amendment to the Ombudsperson Act, and that took place.

We’ve tried to follow, as our guiding principle in this process, attention to what the Ombudsperson himself has said he would need in order to conduct a meaningful inquiry and most importantly, I think, an inquiry that enjoys public confidence. Without that, of course, the purpose of the minister in referral will not be met. If
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the purpose of the minister, in referring this issue or suggesting to us that we refer the issue to the Ombudsperson, is in fact to restore public confidence and answer public questions, then the person conducting the inquiry should actually believe that that’s possible.

What we’re left with is the final but not the least important — and, in some ways, the most important — statement of the Ombudsperson, which Carole has referenced, and that’s his words: “In my respectful view, no referral should be made to this office…unless the committee is satisfied that there will be public confidence in the investigation and its outcome.” He goes on to say, as Carole has said, that “the confidence that such a report must elicit on the part of those most directly affected” is a key issue and that we should give not consideration or due consideration to the views of the impacted employees but the “utmost consideration,” which I think is a purposeful and significant choice of qualifier.

Well, we’ve asked for input. We’ve got it, and it’s unequivocal. It seems to me, if we accept the words of the Ombudsperson, that that’s a significant stumbling block to having a meaningful inquiry conducted by the Ombudsperson. We’ve already had an inquiry conducted by Ms. McNeil that was limited, that didn’t satisfy public confidence, that certainly didn’t satisfy the views and confidence of the impacted employees. I don’t think it’s to anyone’s benefit to have another one.

I would echo Carole’s words in the interests of doing everything we can to see if we can get to a successful result or at least unanimity on the committee that it is important to hear from the Ombudsperson if, in response to the letter from the impacted employees, he sees any productive or meaningful way forward or if he sees any way to address the concerns that they raise. That would be important information for us to consider if he can. I can’t read his mind.

I’m also not a lawyer, but I would point out, in response to Mike, that there is a significant difference between police being asked to conduct an investigation under the law and the Ombudsperson, who’s an independent officer of the Legislature, being asked to conduct an investigation.

He legitimately has an interest in conducting investigations that he believes will satisfy public confidence. If we refer to him, he has no choice but to conduct an investigation, because that’s how the act reads. But that doesn’t mean that he will consider it useful or that he won’t be smack up against the belief of impacted employees who he has the power to compel to testify but who have no faith in the process.

Those are significant issues. There will be significant issues in public confidence. Based on what we have before us, the only next step that I can see that would be useful is to hear from the Ombudsperson himself as to whether, given this letter, he thinks there is any way in which it is fruitful to proceed or advisable for us to refer.

The difference in this investigation — and I think George has talked about it — compared to a police investigation is that in the letter that we’ve received, the submission from the former employees, fired employees, some back…. Their request is that this be done in public, the individuals who are going to be the reason that we’re sitting here as a committee. The reason that we are here dealing with this referral is to address the wrongs for the employees.

The minister says that himself. “It’s been previously acknowledged by me and identified in Marcia McNeil’s review that the decisions surrounding the terminations weren’t handled as well as they should be.” We’re here because things weren’t handled.

We now have individuals — the reason we’re here and having this discussion around referral — who have said: “We don’t believe this can be done. We believe that this can’t be done by the Ombudsperson.” Nothing to do with the Ombudsperson but to do with legislation, the requirements around privacy. The Ombudsperson raised the issue of privacy when he came and said that’s always his preference. That’s completely understandable, given the office and the kind of work that he does.

Again, if you come back to the first letter that we received, under “Summary and conclusion,” point 1 is: “That the committee consider the views of former employees as to whether the matter ought to be referred under subsection 10(3) of the act or an alternative approach pursued.” That is something that’s laid right on the table as the first point in the Ombudsperson’s letter.

I think, continuing on, we have as members wanted to do everything we could to try and address the issues in the letter. I think the next step is the opportunity to have the Ombudsperson address that to the committee so that we’re clear on his views in taking a look at the letter and then, I think, have the further discussion. It seems to me that it’s important, when we have all along tried to address the concerns of the Ombudsperson, that that be taken into consideration.

D. Ashton: Some very good points this morning. I come out of public life coming from working as a councillor at the city of Penticton, as a member and then as chair at the regional district, and I’ve had the opportunity to come across the Ombudsperson’s office on numerous occasions when they’ve had complaints. I’ve been entirely satisfied with the reports that I’ve got — in the fairness, in the equity that were delivered.

I don’t know Mr. Chalke from Adam. We’ve all just met him. But in regards to how the office performs and has performed in the past…. I asked a very pointed question, and I asked it specifically, about the opportunity of obtaining information. Do you get better information in a public venue, or do you get better information speaking to individuals privately?
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It came out — and I can’t paraphrase the individual’s comments — that they felt that people are more comfortable in discussing things in private. Well, investigations do take place in private, and then reports are submitted and become public documents.

I have the greatest respect, the utmost respect, for the individuals that have been wronged in this action that took place, but they’re only a part of the whole entity. I think we are charged here with making a decision not just based on what their comments are but based on the entire process. I have to try and weigh, if we want to find out exactly what happened….

There are two sides to every story. Actually, there are probably three. There’s that side, that side and the actual one that’s in the middle, which is the right. I think we have to be a little bit careful here and really come at this with a balanced approach without putting the new Ombudsperson in an awkward position of — I hate to say this — maybe where we seem to be directing the direction that we think he should be taking.

The proposed motion that I had brought forward before was about what I felt was as wide open as possible and that gave every opportunity for that office to turn over every stone and come back with a very, very complete report. I’ll just leave those comments at that.

M. Morris: I think it was at our first meeting when I stated that the researchers themselves have made it very clear right from the beginning that they want a public inquiry — and their one sentence in their latest letter here: “Our careful deliberations only clarify the need for a full public inquiry.” So we already determined that that’s what their position is.

It’s the job of this committee to determine whether we will forward this to the Ombudsperson for the investigation. We have heard from the Ombudsperson what his concerns were. This committee has worked very well — in fact, admirably well, from my perspective — in addressing the concerns of the Ombudsperson, and I congratulate us for doing that. We’ve done it in a very good manner, and we have taken into consideration the researchers’ thoughts on this.

I’ve gone through their letter that they submitted, through their counsel, and quite frankly, from my own personal experience and from listening to what the Ombudsperson has had to say before this committee, I think that all of their fears are unsubstantiated — that the Ombudsperson can investigate this in a very fulsome manner that is going to retain public confidence in the Ombudsperson’s office.

There’s been nothing that has been presented to this committee so far that would lead me to believe that the Ombudsperson won’t maintain that public confidence in his office by conducting this investigation. Their fears are unfounded, from my perspective.

G. Holman: Just a couple of comments. The concern about us meddling or tainting the investigation somehow — I mean, the committee has been actually asked to meddle, to the point where we’re being asked to participate in developing terms of reference. It’s kind of our job here to meddle.

The language used by the Ombudsperson about the views of the health researchers being given utmost consideration. Given the response that we got in writing from them, it’s hard for me to see how we can proceed without getting the Ombudsperson here to ask his view of that and whether or not his concern there has been addressed. I honestly can’t see how we can proceed unless we have another conversation with the Ombudsperson.

The comment about private versus public. It’s true. I mean, this side has always been advocating for public, as are the people most directly affected, but it’s my understanding that appearing before the Ombudsperson would be essentially under oath, so unless we’re concerned that people are going to lie or misinform — if it’s a public venue versus a private one — it’s not clear to me how that’s relevant. I can see, in a normal Ombudsperson investigation, how that’s a relevant point, but people essentially are under oath. And whether they’re in private or public….

The point that the Ombudsperson made is typically — well, all the time…. He acts upon request by complainants, whereas here the complainants are saying: “You know what? The Ombudsperson isn’t going to do the job properly.”

That’s, I think, the conundrum we’re faced with here. I think we’ve got time today. I think we should, perhaps, even ask the Ombudsperson to come today and talk to us.

S. Hamilton (Chair): I do understand the assertions being made by the most affected employees in terms of the confidence in the Ombudsperson’s ability or lack of ability to do a fulsome job. But at the same time, this committee is tasked…. Essentially, our only role is to decide whether or not we have that confidence in the Ombudsperson and we want to make that referral.

As far as the comment regarding meddling, if you look at the terms of reference…. And I’ll just stop after this comment. If we are too prescriptive, then we are meddling. I think we want to leave any terms of reference going forward as wide open as possible and even engage the Ombudsperson, if necessary. If we need to discuss anything further that he requires to do his job properly, then engage him at that level.

I guess I’m trying to figure out to what end having the Ombudsperson appear before this committee to say: “Yeah, I want to do it, or I don’t.” Again, we’re tasked with deciding yes or no. I don’t know to what level we should be engaged with the Ombudsperson in making that decision. But I’ll leave it there.
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I think it’s important…. I agree with you, Scott, and with your comments around the fact that it’s our responsibility as a committee to determine referral. That is our responsibility. That’s what the minister has asked us to do as a committee — to make a decision around referral. Certainly, I’d imagine for everybody around the table, the view of the Ombudsperson is important in that. The Ombudsperson is the one who we are referring it to, so it is important to have the Ombudsperson’s view around that.

I don’t believe at all that this has anything to do with setting a direction or interfering with a direction the Ombudsperson should take. In fact, this is the direction that the Ombudsperson gave us. This is the direction that came to us in a letter from the Ombudsperson, saying to us as a committee: “It’s important that you take a look at these issues. It’s important that you consider these issues. It is important that you take a look at public confidence and the view of the employees, because if those pieces aren’t there….”

Again, I come back to his own words, which say: “I am of the view these need to be addressed in order that a referral and resulting investigation achieve the jointly held goal of success.” That’s the Ombudsperson’s wording. I don’t believe that this is any discussion to say to the Ombudsperson: “Do you want this or not?” He’s been very clear with us that if we refer it, he’ll have to do it. That’s his responsibility.

I think it’s our responsibility to make sure that we have explored everything as a committee before we refer it so we don’t put either the Ombudsperson or, in fact, this entire process in a place that can’t do the job that it’s meant to do. That’s happened enough with this issue. That has happened enough with the Health firings, where investigations have been hampered, where difficulties have occurred, where they haven’t been able to get the information.

Dan’s argument is an important one around all the sides to an issue and, in fact, pushes further for having this investigation public. If there are many sides to an issue — and I completely agree with that — how do you get at that when the inquiry is done in public? How do you get at that when you don’t have an opportunity to cross-examine? How do you get at that when that’s not a discussion that people will see in public and be able to have the confidence that this is being done thoroughly?

I think that’s the key here — not putting the Ombudsperson in an awkward position of taking something on where we’ve already made it difficult in the beginning by saying that public confidence won’t be there. I think we have made a very important effort, as a committee together, to ensure that the Ombudsperson’s concerns are addressed and that if this goes to referral, those issues are being addressed.

Again, I come back to the Ombudsperson’s letter — public confidence, the views of the researchers, utmost consideration. That’s why I think it’s important to have that discussion.

J. Shin: I really appreciate the input from all the members this morning on this. While I don’t disagree with Mike and Dan that the work of the Ombudsperson’s office is credible…. Of course, this committee has worked very well together to make significant strides, and quite quickly too, in response to the Ombudsperson’s requirements for referral.

I also echo the recommendation of Carole and George that, really, the next question for us as a committee is quite a simple one, in fact. That’s just to simply consider how the Ombudsperson will reconcile the position made very clearly by the Health researchers.

I mean, I feel that this committee has prioritized to earn public confidence in our process so far and has decided to invite the input of those most directly affected. For us, at this point, to be brushing aside the submissions that came in and again deciding for ourselves what those submissions imply or would mean…. I just feel like we are getting the job half done here. I think it’s quite a simple and reasonable ask for us to reinvite the Ombudsperson in view of the position made very clearly by the Health researchers.

What are your take, in a sense that…. He has made it very clear in his requirements that the public confidence is given to us through the Health researchers themselves. That is an important condition for the Ombudsperson to take on this particular referral.

I just wanted to support the idea. I would love to hear about his input and his thoughts on this, and I really ask all the members to support that.

J. Yap: I want to echo what’s been said — that the committee has worked well on this file. We’ve had respectful dialogue, and it’s been well noted.

To Carole’s point, in regards to the view of the Ombudsperson. I believe that we have addressed the issues that he raised in his letter to the committee, one of them being that the committee consider the opinion of the researchers. We’ve done that. He didn’t say that we need their support. He did say we should consider their views. I don’t think anyone around this table would be surprised at their views that they provided to us. They were very well known and public prior to receiving their submissions.

I’m not sure what would be accomplished having the Ombudsperson come back here to reflect on what we’ve heard, which we already knew prior to receiving their submissions. He had, I’m sure, already been aware of their views.

The public interest is to get an investigation underway, I believe, to find out what happened here. The Ombudsperson, I believe, is a vehicle to professionally,
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effectively and in a cost-efficient way, undertake this investigation in the public interest.

I think and I hope that all of us here, members of this committee, will take into consideration that we really should deal with the heart of the matter, which is referring in as broad a terms of reference as possible to let the Ombudsperson have the mandate to go and conduct this investigation with as little strings attached and let him prepare a plan, come back to us with his proposal and budget and allow him to conduct an investigation into this matter, which all of us want to see happen.

This, I believe, is what the public is looking for: an investigation into what happened. The Ombudsperson can provide that service.

M. Morris: A couple of questions. I went through their letter and their submission here and for the life of me I can’t see what…. I disagree with a lot of their rationale here.

I guess I would have to ask: what would we achieve by having the Ombudsperson come back here? What question would you ask the Ombudsperson? Whether he agrees with their submission? Or what question would you ask of him? That’s not clear in my mind — the specific reason why you want him back here.

G. Heyman: I’ll take a stab at answering that. I think in order to answer it, it’s important to back up a moment.

Nobody here, on either side, is questioning the competence of the Ombudsperson or the ability of the Ombudsperson and his staff to carry out investigations under the normal conditions that are contemplated in the act. This is a unique condition and a unique referral and, according to the Ombudsperson, has never happened before in it’s 35-year history. So it’s unique, and because it’s unique, he’s sent us a letter with a number of his concerns about his ability to conduct an investigation given the constraints of his processes and his legislation.

He’s suggested we not just consider those views of the researchers. As John Yap has stated, he’s suggested we give it utmost consideration. Well, they’re unequivocal in their response to us. In a sense it’s irrelevant whether we think their concerns have legal grounding or not. They don’t have faith that this process will answer the questions they have or give them any measure of justice.

Of course, why is the public interested? It’s interested because a number of people were treated unjustly. The public wants to know why, and they want those who were treated unjustly to have some faith that something will be learned from it and that a proper investigation was conducted.

Our view in suggesting that the Ombudsperson come and talk to us is not to conduct the inquiry before us or not to be influenced by us with respect to the inquiry but to help us answer the question. We don’t get to answer the question about whether a public inquiry is best or whether there should be some other form of inquiry. We do get to answer the question about whether we think it’s appropriate to refer to the Ombudsperson to meet the issue raised by the minister, which was public interest and concern.

From my perspective, inviting the Ombudsperson to give us his reaction to the letter is to essentially say to us whether he thinks an inquiry held by him would be meaningful or whether it would be yet another inquiry that didn’t satisfy public concern and confidence or, possibly, that he’s read the letter, he understands the concerns that the researchers have raised, and he thinks perhaps that if he talked to them, or in some other form, these concerns could be addressed and perhaps their view would change. But we don’t know that without talking to him.

S. Hamilton (Chair): If I could wade in for a second just for the interests of clarity. I could be corrected here, but it’s my understanding that the Ombudsperson’s reference to public confidence had to do with the unanimous support of this committee, not public confidence in general terms. I’ll have to go to his submission to dig that out. Maybe we can just hold that in abeyance, and we’ll take a look.

M. Morris: Yeah. I’m not discounting…. The researchers obviously have some concerns and some issues. What I’m saying is that they’re unfounded. If the Ombudsperson was to read their letter, which I’m sure he has by now, it would give him all kinds of avenues to investigate. This is the beginning of an investigation. That letter that the researchers have compiled here gives him all kinds of stones to overturn, and it will lead down the road to whatever the outcome of the investigation will be.

But to satisfy their concerns, under section 10, the authorities of the Ombudsperson with respect to
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any matter…. I’m just going to read it here: “(1) The Ombudsperson, with respect to a matter of administration, on a complaint or on the Ombudsperson’s own initiative, may investigate (a) a decision or recommendation made, (b) an act done or omitted, or (c) a procedure used by an authority that aggrieves or may aggrieve a person.” Those are very broad.

As an investigator — my background was an investigator — that leads me to believe that…. Based on the letter that the researchers have provided, boy, I tell you, my mind’s already working on the processes and the avenues and the people that I can go to speak to, to get to the heart of the matter that is going to be referred — or, hopefully, will be referred — to the Ombudsperson.

I don’t see the point in clouding or muddying the waters any more by bringing the Ombudsperson in here to make a comment on whether he agrees that this is the proper course to take.

S. Hamilton (Chair): If I could just clarify — okay, it’s a little of both — with regard to my last comments. It’s in respect…. “In my respectful view, no referral should be made to this office by the committee unless the committee is satisfied that there will be public confidence….” Then he talks about unanimous committee support and the views most directly affected. Well, so far we’re dealing with the submissions of the views of the people that are most directly affected. So just to clarify that. We can have a broader discussion about that going forward.

S. Gibson: I would say the committee is equipped to make a decision. I think often the criticism of government agencies and institutions is that they can tend to be slow moving sometimes. Sometimes the processes seem languid. I think we have the opportunity here, for the best interests of transparency and to assist these employees, to move in a more timely fashion.

With regard to the report itself, it’s important to remember that — I think this was noted by a colleague to some extent — while the research and the report itself, the study, is done in a confidential manner, the report is public. It’s a public report. So while the process of interviewing may be done in a more discreet manner to protect the process, there is a full public report. I think that should be noted.

The other point I would like to make is that I don’t believe the Ombudsperson would take this on if he didn’t believe he could do an effective job. If this is submitted to him and he accepts it, I have full confidence that it’s going to be in the best interests of resolving this situation in the public interest, to review all the data and reveal it in a transparent way.

My general feeling is that I believe we should move along. I’m encouraged by the level of discussion, but I also think that we knew what the employees thought already. It’s not like this document is a surprise. Good information from them, but it’s not necessarily, in my view, a surprise.

Those are my remarks. I would encourage the committee to be proactive today at this meeting. I think we can proceed in a way that’s in the best interests of the public interest and also the employees.

E. Foster: We’re at the point where we either have…. Our mandate, as has been said several times, is to make a decision as to whether this is referred to the Ombudsperson or not, and that’s it. The discussion of a public inquiry is beyond the scope of this committee. So it comes to the point of whether we either have faith in the Ombudsperson to do this job or not.

It’s simple. If we don’t have faith in the Ombudsperson, we don’t refer to that office, and if we do, we refer it. With all due respect to my colleague, who I am very reluctant to correct, if we refer it, he doesn’t have an option. I suppose he could quit, but that’s really…. By legislation, if we refer it to him, he’ll take it on. I don’t think he’s going to quit. He’s very competent, and I have great faith in his ability to do this.

I guess my question is: what is going to be served in the public interest, dragging this out? I think the Ombudsperson certainly has given us his concerns and think that he’s done a great job of addressing those — and a piece of it with the legislation, which has moved along quickly, with everyone’s support on both sides of the House.

I think we have to come to a point where, okay, we’re not going to drag this out any longer; we’re going to make a decision whether we choose to send it to the Ombudsperson or not and let his office get on with developing a budget and his terms of reference for what he wants to do.

C. James (Deputy Chair): Just a couple of things. I know we’ve done it a number of times, but I think it’s important to put on the record again that this has nothing to do with our confidence in the Ombudsperson. We have full confidence in the Ombudsperson.

The Ombudsperson in fact was, as everybody knows, supported in the Legislature by both sides of the House. There were members of both sides of the House on the hiring committee and felt very strongly and unanimously supported the appointment.

This has nothing to do with public confidence in the Ombudsperson. This has to do with the mandate of the Ombudsperson and whether it’s possible to build public confidence based on the mandate that the Ombudsperson has.

The Ombudsperson was very clear in saying to us there are a number of limitations. We’ve been able to as a committee — I’ve been really pleased that we’ve done that work — address some of those concerns. But there are a couple of outstanding pieces. Scott made that point as well that there are two pieces under public confidence:
[ Page 1492 ]
unanimous committee support and the views of those most directly affected. Those are the two pieces that the Ombudsperson himself raised for us as a committee.

I just want to say again I don’t see a huge difficulty. In fact, I think we could make an attempt to phone the Ombudsperson and see if he’s available today. We’ve booked a committee meeting until 4 o’clock. If we don’t need all of the time, we can wait. We could recess. We could come back and have the Ombudsperson appear.

To the point around what kinds of questions, I think George identified it. The basic question is: given the letter from the researchers, do you believe that public confidence will be impacted? I think that’s a pretty straightforward point of view.

The Ombudsperson has been clear that it is not his job to say whether referral should occur or not. That’s our job as a committee. We have that responsibility. But I think it’s reasonable to hear from the person who would take on the investigation.

As George said, there may be pieces in the letter that he feels can be addressed, and there may be pieces that he can’t. Let’s get that basic information as a committee and then make a decision based on that basic information.

I don’t think it is a matter of dragging things out. I don’t think it’s a matter of delaying anything. I think it’s a matter of making sure that we have of all the information we need to discharge our responsibility for something that, as has been said many times, is unique, is rare, doesn’t happen and is also an issue that has not been handled well from the first place.

I as an individual — and I’m sure every committee member — want to make sure that this gets off on the right foot, if this is the direction that it goes.

I’m concerned with the letter that came forward. I’m concerned that public confidence isn’t there. I’m concerned about the views of the researchers when it comes to ensuring that this is an investigation that will cover all the issues that need to be covered. I think it’s reasonable to ask the Ombudsperson their view.

M. Morris: I understand where you’re coming from, Carole. But I think if we reviewed the correspondence that we received from the Ombudsperson, the correspondence that we received from the Deputy Attorney that talked about pretty much the same issues that the researchers have compiled in their letter to us, those answers are there already. We’ve answered many of the concerns that the researchers have in this.

It goes beyond, though. Initially, we’re looking at the actions of bureaucrats within government pertaining to the firings of the health care workers that the Ombudsperson is going to investigate.

The researchers have gone beyond that. They’re talking about issues that go back to the Pharmaceutical Task Force report and the work that they did back in 2008, 2009, 2010 — somewhere in that period of time — that changed everything from the therapeutic initiative to the drug review process that B.C. has now.

Those are all things that the Ombudsperson will definitely look at. If there’s any reference in his investigation that some of these things led to the actions of individuals — whether they’re government, whether they’re researchers or not — those are things that he will definitely look at in the course of an investigation.

The concerns that they outline here that they won’t be adequately addressed are unfounded, in my view. I think that’s reinforced by the letters from the Deputy Attorney and from the Ombudsperson and the work that this committee has done up until now.

I have utmost confidence that an investigation — that’s speaking from an investigator’s perspective — will uncover all of the details that we need to hear about.

S. Hamilton (Chair): I guess a question that comes to my mind is: if we were to invite the Ombudsperson here to provide us some public comment on some of these issues, to what end does that take us? Are we asking the Ombudsperson to comment on whether or not he thinks the potential for public confidence exists now? Are we asking him to tell us whether or not he believes his office has the capacity, the ability, the tools to conduct a proper investigation? Are those the two questions for him? If so, is it appropriate to ask those questions in the first place?

Again, we go back to what the core, specific job of this committee is to do. It’s to decide whether or not a referral is appropriate based on our perception of public confidence and our perception of the Ombudsperson’s ability to do the job — capacity to do the job.

Okay. Anybody up for a five- or ten-minute recess? Then we can catch our breath and continue the discussion. Would that be appropriate?

S. Hamilton (Chair): I’ll call the committee back to order. We can continue our discussions, if we wish, on this particular topic — an opportunity to give any more thought to our direction here.

Any further commentary on this particular issue? We’re going to have to make a decision going forward here with respect to Mr. Chalke.
[ Page 1493 ]

For my opinion, we’ve spent the last month working really hard, moving heaven and earth to give him the tools that he needs to do his job. I’m concerned that…. I wouldn’t want to see us inviting him here simply to defend himself and his offices to the extent where he…. I don’t want to think: “Okay, we’re a little worried that you might not be able to do the job,” or “You might not want the job” for whatever other reason.

I’m going to put it out there, but, going forward, I’m a little bit reluctant to suggest that we invite Mr. Chalke to this committee just simply for him to, hopefully, tell us that he feels confident that he can do it.

I mean, an all-party committee, a very short time ago, appointed Mr. Chalke unanimously to his position because we had faith in his ability to do the work. So I’ll put that out there.

M. Morris: I agree. We talk about the utmost consideration of the researchers. We have given the utmost consideration to the researchers. We’ve reviewed their submission, and Mr. Chalke will get a copy of that. I think it’ll form the basis for his investigation.

Again, speaking based on my past extensive experience as an investigator, I think we’ve meddled enough. I think we should just turn it over to him to investigate and get the job done as quickly and as efficiently as possible without muddying the waters anymore.

S. Hamilton (Chair): If I could add, it doesn’t stop there. We still have the terms of reference we have to agree upon. In my opinion, that’s another area where we would engage Mr. Chalke. His input into that terms of reference would provide, hopefully, his office the latitude to do the job he has to do.

C. James (Deputy Chair): I want to say, again, this isn’t anything to do with the ability of Mr. Chalke to do an investigation or not do an investigation. It’s to do with the parameters that he has within his office, legally, to be able to do an investigation. He cannot go outside those parameters.

We have pushed those parameters around the committee — thankfully, unanimously — to be able to address the issue of cabinet documents. We’ve been able to have the legislation adjusted to address that. But he is very clear that there are parameters around his office as an ombudsperson, so this isn’t related to whether Mr. Chalke can do an investigation. I think Mr. Chalke will do a fine job. It’s whether his legislation gives him the ability to be able to look at those parameters.

I think the basic questions around jurisdiction…. There are some very valid concerns that have been raised in the letter by the researchers that talk about jurisdiction — whether he has the jurisdiction to look at certain things, whether his jurisdiction will cover the issue of conflict, whether his jurisdiction will address some of the legal processes that are going on.

Those are very valid concerns that I think, to do our due diligence as a committee, we should be requesting Mr. Chalke to respond to — not whether he wants the job or not. That’s not his right, and he’s been clear about that. He has been very upfront with us.

Mr. Chair, I would put a motion forward, but it doesn’t seem useful at this stage, because it’s pretty clear that there isn’t agreement around having Mr. Chalke come. I guess I want to put my last plea forward to say that I think we’ve done a good job as a committee around due diligence. I think we’ve worked hard as a committee to take our responsibility seriously. We’ve worked hard to try and address the issue.

The issue that is not addressed at this point is the issue of public confidence and the views of those affected. I think it’s reasonable to ask for a couple of moments of the Ombudsperson’s time to ask him those very questions.

S. Hamilton (Chair): I guess I’m a bit confused, because very early on in this process, Mr. Chalke asked questions around legal parameters and jurisdiction and conflict. That’s what I was talking about — the work that this committee has done to kick over those hurdles. He came with three very valid concerns, in my opinion. We addressed all three of them.

Going forward, I don’t see that as the argument. I know they’ve been brought up again in the letter submitted by the researchers. But in my opinion, those were addressed last week when we changed the last piece in a break-speed piece of legislation in this House — I think in some 20 hours; I don’t know; that’s got to be unprecedented — to deal with the last hurdle. I believe we dealt with all that — but anyhow, going forward.

M. Morris: With respect to the jurisdictional issue too. I think the jurisdictional issue has already been addressed significantly throughout the discussion that the committee has had.

Just going to section 11(3) of the Ombudsperson Act, it says: “If a question arises about the Ombudsperson’s jurisdiction to investigate a case or class of cases under this Act, the Ombudsperson may apply to the Supreme Court for a declaratory order determining the question.”

If you look at the schedule of authorities that he has under the Ombudsperson Act — if you look at section 10, if you look at that section 11(3) — I think he’s pretty much covered and that he has the authority and the jurisdiction to investigate all of the issues that the complainants or the researchers have put forward and all of the issues that have been discussed throughout the deliberations of this committee.

S. Hamilton (Chair): If I could add, I’m of the opinion
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that if there was waning public confidence, I think much of it may have stemmed out of the original submission put forward to this committee by Mr. Chalke. But again, many of the issues in that submission have been dealt with. I think that goes a long way to improving and instilling public confidence in this process.

M. Morris: Just one further comment on that too. We’ve acknowledged it, and everybody has acknowledged it. This is uncharted territory. A legislative committee has never made a request like this to the Ombudsperson. But reviewing everything, let’s have some faith in the legislation. Let’s have some faith in the processes that have already been determined by the Ombudsperson’s history in this particular province.

I’ve got faith in the legislation that’s currently before us and the authorities under the Ombudsperson Act and the jurisdictional issues that have been addressed already. Let’s give it a whirl. The Ombudsperson is a person of credibility. His office has developed the confidence of the public over the years. I think everything is aligned to look at this matter.

S. Hamilton (Chair): Well, as Chair, I’ve beaked off enough, so I’ll cede to the floor here. Are there any further comments?

S. Gibson: I just want to say I concur with what Mike has just said. I think he summarized it very well.

S. Hamilton (Chair): Madam Clerk — advice going forward. Do we have to deal with the actual letter and the referral at this point, or should we move discussions on to issues around terms of reference? I’ll leave it to your discretion.

K. Ryan-Lloyd (Clerk of Committees): The original request from Minister Lake to you provided you with the opportunity to consider whether or not you would use powers under section 10(3) of the Ombudsperson Act to refer a matter for investigation and report. I would note that the Ombudsperson, as has been noted earlier today, is compelled to investigate a matter so referred so far as it is within the Ombudsperson’s jurisdiction and also subject to any special directions by the committee.

It seems that the committee could — if it’s helpful to the discussion — consider the matter of referral and whether or not, if that was to proceed, there are any other special directions that could be conveyed to the Ombudsperson — if that’s helpful or not.

Certainly, there are many robust aspects of the Ombudsperson Act that could be used to essentially guide how he executes his duties and responsibilities under the act in context of this investigation. But the committee has had a fulsome set of meetings on this topic. If there are any other special considerations that you want to convey in context of a possible referral, I just wanted to note that opportunity for you, in case you think it’s helpful.

I presume if a referral was to occur it could be made by a motion. Any special directions that could form a more detailed terms of reference could be conveyed, if not by motion as well, certainly by letter under the signature of the Chair and/or Deputy Chair.

D. Ashton: We’re not there yet, but if it does come to terms of reference, I’m really not personally interested in defining the terms of reference. I have a huge amount of respect for that office, as I mentioned before about my previous public life. We have a brand new Ombudsperson that is incredibly aware of this issue. We have a public that is asking for answers. We have affected individuals that are demanding answers.

I don’t think you can get a better terms of reference or scope of an investigation or direction to the office other than what has been presented by those in this room, by those that have been affected by this and by some questions that have come out of the public.

I think Mr. Chalke has an opportunity here. He was only sworn in for a couple of days, and this is the first big one to land on his desk. I am very, very, very sure that this investigation, inquiry, by him will…. I don’t think there are going to many stones that are not going to be unturned, to be honest.

C. James (Deputy Chair): No, I decided not to. It’s pretty clear what direction the motion will go, so there seems no point at this stage.

M. Morris: I just want to say, as well, I think a lot of the fears, perhaps, that the researchers have will be mitigated by broad terms of reference — going to what Dan said.

I’d like to see this just carte blanche. Investigate it. Talk to anybody you want. Look at any document you want, and come back to us with your report once the investigation is concluded.

J. Yap: I’ll add to what Mike just said. It’s been said before. I’ve said it. Let’s give him as broad a referral to get this investigation underway and done. That’s what the public interest is. Again, to say — and it has been acknowledged by all around the table — no one is questioning his ability and the ability of his office to get this investigation done.

My confidence is there. Should we make this referral, he will do a thorough investigation.
[ Page 1495 ]

E. Foster: I think everybody is in agreement on that. I guess in the legal terms, if there are specifics that the committee wants to make sure he looks into, the wording goes in the terms of reference “and not limited to.”

I mean, if there are specifics that somebody wants to put in, I think that there’s an avenue to do that without restricting the Ombudsman. Basically, the “not limited to” gives him actually carte blanche to do whatever he wants. But if anybody wants to put something specific down, it can be covered that way.

S. Hamilton (Chair): Could I put to the committee that Carole was kind enough last week — and I think you have it on the table — to submit to us, dated July 22, a proposed terms of reference. If it were to please the committee going forward, using either this as a basis or whatever as the basis, Carole has agreed that we’re going to continue to work together in terms of how the Ombudsperson goes forward with respect to a terms of reference.

If it would be appropriate — and again, if the committee were to see fit — for Carole and I potentially to meet with the Ombudsperson, have that discussion, let the Ombudsperson be engaged as well to make sure that they’ve got a broad enough scope going forward that they feel comfortable. Eventually the outcomes of those discussions would come back to this committee, but in the meantime, if you see fit, we could take that route.

C. James (Deputy Chair): Two points, I think, that are important. Whatever way the terms of reference are developed, if a referral motion happens — and I believe the referral motion has to occur to decide around the terms of reference — the terms of reference need to come back to this committee.

I respect the Ombudsperson as well. I respect his jurisdiction, but I also think we have responsibility — if that’s the route we go — for the terms of reference. I think it’s important to get his feedback. He offered up his legal counsel to provide support to us around jurisdiction. I come back again to jurisdiction.

I think that’s important. As the Chair has said, I made it clear regardless of which way the referral motions goes, we will engage in making a less than satisfactory process as good as it can be.

I was very clear about that with the Chair: that we will continue to be engaged, and we’ll continue to be involved because I think the researchers deserve that around the table. But I do believe we’re a bit cart before the horse, and I think we have to deal with referral.

D. Ashton: Carole, thank you for that. I concur wholeheartedly with what you’ve said. I just don’t want to be seen or deemed as fettering into a process.

Before I did that, I would like to hear some more discussion around the table. But I just want to ensure that whatever that office and that individual need they have at their disposal. That’s what I’m after.

S. Hamilton (Chair): Just to reiterate, as well, what Carole was saying a minute ago. Essentially, getting the Ombudsperson to sign off on those terms of reference obviously is important — getting his buy-in, his acceptance — because without it, we go back to our issue of public confidence. I don’t want to take a chance of shaking that, so to speak.

M. Morris: Going back to Carole’s comments about the referral motion first, I think the terms of reference are an integral part of the decision-making process for a referral. I think we need to have a clear focus on exactly what those terms of reference are, to give comfort with the referral decision that we make.

I think Dan had a motion quite awhile ago that we looked at that was very broad. I looked at what you’ve written, Carole, and there are some very good things in the terms of reference that you offered here. But I’m thinking: is it too prescriptive in a sense that it might prevent the Ombudsperson from going in a specific direction if he wants to go in that direction? I’d like to see very, very broad terms of reference established that would make the decision to refer the Ombudsperson this file a comfortable decision to make for everybody.

S. Hamilton (Chair): I guess that supports Carole’s argument about bringing it back to this committee, so thank you for that.

Anything further? Seeing none…. My goodness, I thought we could potentially go until four o’clock this afternoon.

D. Ashton: For the committee: be it resolved that this committee, pursuant to section 10(3) of the Ombudsperson Act, refer the Ministry of Health terminations file to the Ombudsperson for investigation and report as they see fit, including events leading up to the
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decision to terminate the employees, the decision to terminate itself, the actions taken by government following the terminations and any other matters they may deem worthy of investigation. The committee trusts that this investigation can be concluded in a timely manner.

S. Hamilton (Chair): Thank you, and we don’t need a seconder. Dan, if you were to sign that and submit it to the Clerk, that would be sufficient.

G. Heyman: I think it’s important to preface my remarks by reiterating what a number of us on both sides of this committee have stated in terms of the workings of the committee in the past: working collaboratively, trying to find unanimity, often looking for ways to compromise in which to do that. That is an important feature of the committee in the process of considering the request to refer this matter to the Ombudsperson.

We have done that as well, and it has not been easy, because it’s been a charged issue. We’ve looked at a number of issues, and we’ve invited people to submit. We’ve brought people to the committee. We’ve had recommendations to the Minister of Justice to amend legislation.

All of that speaks well to the intent of the committee, and therefore, I wanted that to be the background to my remarks, because I think that’s important. It’s one of the things that is valuable about legislative committees in general and certainly valuable about this one and one of the things that has drawn comment in the past.

However, part of the process of finding unanimity in other situations has tended to be areas where it’s not a simple yes or a simple no. Unfortunately, we’re now at the yes or the no point. In order to support a referral to the Ombudsperson for an investigation that certainly is not designed to be one of our choosing…. We’re considering a request from the Minister of Health. We’ve given it substantial consideration. We’ve heard from a lot of people.

In the end, I think it’s important to be guided by the Ombudsperson. We’ve all said that we have faith in the Ombudsperson. It’s not a question of asking the Ombudsperson to defend himself, his office or the tools at his disposal. They are what they are. The Ombudsperson has had three of his four main considerations addressed, but the final one remains, in my view, to be one of public confidence.

He’s not saying whether the public would have confidence in him, and neither are we. What he’s saying is for another review to have meaning and actually address the issue raised by the Minister of Health, which is to deal with the public concerns and questions, it needs to enjoy public confidence. Then he goes on to say that central to that is “the confidence that such a report must elicit on the part of those most directly affected.”

Mike has said that the views of the people affected are unfounded, in his view. That may be. Probably none of us are in a position to judge that. Their views are both personal and legal in nature. But they are their views. Their views, at this point, unequivocally state that an investigation by the Ombudsperson is not one in which they have faith. They’ve actually suggested that to go through a process in which they have no faith could cause them further harm.

We have suggested that we invite the Ombudsperson to tell us whether he believes that concerns that they have raised — and not every concern that they have raised — as an obstacle to a full and complete inquiry have been addressed by the legislation. They have raised other ones. Whether we think they’re valid or not is, frankly, of no account. What is of account is whether the Ombudsperson believes that he can address them and whether the Ombudsperson believes that he can do an inquiry in which they have confidence and in which, therefore, the public will have confidence.

For me and I believe for my colleagues…. We have tried hard to see if there’s a way we can make this work and we can find unanimity in this committee. For us and for me, I believe that not being able to hear one more time from the Ombudsperson about his reaction to the points raised in this letter, whether he thinks they can be addressed in any fashion and whether he thinks….

It’s not a question of whether he’ll take the inquiry on. As has been pointed out, he has no choice. The question is whether he believes that even giving it his best effort, it will have value, it will enjoy public confidence, and it will enjoy the confidence of the researchers.

Absent hearing that from his lips, I cannot support this motion. I don’t believe it’s appropriate, if in fact we trust the Ombudsperson’s view about doing a valuable inquiry — an inquiry that meets the concerns expressed by the Minister of Health, meets the questions of the public, meets the concerns of the public and, if not most importantly at least equally importantly, meets the concerns of the individuals who have been, admittedly by the government, wronged. I do not see that with the material before us. I do not see that in the submission of the researchers.

I do not see that in terms of what the Ombudsperson has asked us to give utmost consideration to, and in the absence of any further discussion with the Ombudsperson, I’ll be voting no.

D. Ashton: Just for the committee, where I had said “they,” I meant the Ombudsperson. So please, there are two situations — the third line, three words in, and the fifth line, about six or seven words in — that “they” refers to the Ombudsperson. Just so everybody knows.

C. James (Deputy Chair): Thank you for the discussion. I want to speak to a couple of points that I think are important here. I think George has said a lot of
[ Page 1497 ]
what I was going to say, so I won’t repeat it, around the Ombudsperson and the ability for him to take on an investigation and our confidence in that office and in the individual in that office.

But I come back to, again, our due diligence. This is a highly charged issue, as has been said, and it’s also a very unique circumstance that we’re dealing with at this committee. We don’t have a lot of precedents to look at, as a committee, to say: “This is what’s happened. This is how referrals have occurred.” This is a rare occurrence — an only occurrence around the Ombudsperson’s legislation in 35 years, as he points out.

I think it’s critical that we make sure that we have all the information we need to send this off on the right footing. As I said, that has not been the way this issue has been handled.

If we take a look at the letter that came from the researchers, they raise a number of points, but they also raise a couple of very basic, specific questions. They state in their letter:

“The Ombudsperson cannot pierce litigation privilege, which would protect the conduct of government in our grievance and wrongful dismissal cases from an Ombudsperson’s investigation. In other words, while the Ombudsperson could investigate the administrative failures to which we were subjected…he cannot get to the heart of the matter. It would be simply not appropriate for the Ombudsperson to accept the referral of a matter he lacks legal authority to pursue, nor is it appropriate to ask him to do so.”

To me, it seems pretty basic to say to the Ombudsperson: “Is that accurate? Is that valid?” It’s a pretty basic, straightforward question. So from my perspective, I think just asking the Ombudsperson to come forward, to ask if he feels the jurisdictional issues have been addressed or not…. Are there still jurisdictional issues that they have raised? Then we make our decision.

We’re not asking the Ombudsperson to tell us whether he will take it or not. We’re not asking the researchers. They’ve made their points. It’s our responsibility as a committee to make a decision, and that will give us the information we need to be able to make a judgment call around whether this can be addressed.

I’ll be voting against the motion. I think we don’t have all the information we need to be able to make a decision. I appreciate the discussion that’s occurred.

The other piece in the motion that concerns me is the piece that the investigation conclude in a timely manner. I think, again, no timeline restrictions…. I think the Ombudsperson himself made that kind of comment — that it was important not to put restrictions around the investigation. I think that also is problematic. But I think the referral itself is problematic without all the information that’s here.

We’ve said from the start that a public inquiry was what we wanted, but we have agreed and will continue to agree to do the best with what’s here and to represent the public view through this. But a criteria that the Ombudsperson put forward, as has been said, is public confidence and the utmost consideration of the views of the researchers. I don’t believe we’ve completed that, so I’ll vote against the motion.

M. Morris: Comments that George made, and Carole as well…. Basically, by having the Ombudsperson come here and comment on the researchers’ letter and whatnot, it’s asking him to prejudge his investigation. So to make or determine, “Are you going to be able to investigate this or not,” well, really, in any investigation, when you get the question put to you and you start investigating it, you’ve got no idea where that investigation is going to go.

He, as Ombudsperson, just like any other investigator, has no idea what path that investigation is going to go until he starts going down that path. It could lead into multiple paths. I think to have him come before us and comment on the researchers’ letter is asking him to prejudge his ability or the outcome of the investigation.

With respect to Carole’s comments on the issues dealing with ongoing litigation or ongoing lawsuits and whatnot, that does not limit the Ombudsperson from conducting the investigation and obtaining various evidence, an outcome. He might have to wait for the outcome of the litigation, to make some kind of a determination, but it doesn’t limit his ability to investigate that particular issue. That’s no different from a public inquiry. A public inquiry would be limited on what they can do as well, with respect to ongoing litigation and coming up with some kind of a determination on it.

D. Ashton: Just speaking to the motion. Carole, I’ll direct it at “the timely manner.” I just want this to garner and have the priority that it deserves. That’s why I put it in. There will be opportunities for them to come back and discuss with us about the budget, but it was put in because I really think this deserves the highest priority possible.

S. Gibson: Just affirming that the phrase “timely manner” doesn’t say rush it. It doesn’t say: “Let’s get this thing moving in an overly expeditious manner.” What it does say is that time is important. Also, as time goes by, it’s harder to get accurate information, because memories and those kinds of things…. People will lose touch with what happened. I think “timely manner” is a good phrase, and I support it.

S. Hamilton (Chair): Any further comments? Okay, I’ll comment, just with respect to some of the comments.

George, you prefaced your comments by suggesting that the researchers have no faith in this kind of investigation. Then toward the end we seem to be hung up on the premise that the researchers have to have faith. Well, regardless of what discussions we have around this table, I guess…. I don’t know how we are going to get there if
[ Page 1498 ]
that’s the same attitude always going forward. I was a bit confused.

We’ve had two submissions made to us by the researchers — the public submission earlier, a month or so ago, and essentially reiterating the concerns that were made in the second one. It seems difficult for me to understand based on all of that — again, being hung up on that — how we can possibly move forward otherwise.

Then again, are we asking the Ombudsperson to come here and try to convince the researchers that this is the right path to go? I don’t know if that’s necessarily his job either.

I want to also speak to a comment that was made with reference to the last submission about the Ombudsperson not being able to pierce litigation privilege. The government has already made commitment to waive privilege and to provide access to people, to materials, as necessary in the course of action of the Ombudsperson’s investigation. To that extent, I think that’s been well addressed.

I think a lot of the concerns have been identified. The ones that the Ombudsperson addressed in his original submission to this committee, we’ve gone over and over and over again. I understand — we’re very, very close. But I guess in my respectful opinion, I don’t see us getting much closer. So for those reasons, I’m going to let the vote occur, if there’s no further discussion.

G. Heyman: I won’t reiterate my previous points, but I do want to clarify what I think is a misunderstanding about one of my statements.

I’m not stating that from my perspective or our perspective that the researchers, essentially, are making the decision for us by saying yea or nay. What I am referencing, and what I have from day one, is the comment by the Ombudsperson that talks about public confidence and what’s required for that. He says that a significant requirement for that is confidence of the most impacted employees. He suggested we give that utmost consideration.

With respect, from my perspective, we have not. We have considered it briefly. We have talked about it briefly. We have not given the Ombudsperson a chance to reflect and to feed back to us his reaction to some of the points which they have raised, one of which is piercing litigation privilege. With respect, I believe the commitment of the Attorney General can only go so far as a commitment for government. It can’t go so far as a commitment for other people with rights under the law who are protected by litigation privilege, at least with respect to the Ombudsperson.

That, as my colleague has said, is an important question for the Ombudsperson. I think it is a perfectly valid question for the Ombudsperson, who will have no choice but to say yes to a referral, about whether he thinks that any inquiry he can do in this circumstance would have public value.

That’s important for us to know. It’s important for the public to know, and it’s worth hearing. That’s why we suggested discussions with them.

I have never suggested that it’s the Ombudsperson’s job to sell the process to the researchers or convince them. What I have suggested is they have raised a number of concerns. Perhaps he is able, or might choose, or might not choose, to informally have a discussion with them to address them. We will never know if we do not ask him to talk to us about it. Once again, it’s why I’m voting no.

S. Hamilton (Chair): Not knowing the Ombudsperson well — for a very short period of time — I am quite confident that if he finds difficulty, if he finds problems with respect to what we lay on his table, I’m quite certain he’s going to let us know about it. Going forward though, again, I’m reiterating my faith in his abilities to do a fulsome job.

J. Yap: More a procedural question: should this referral motion go forward, is there a further role for this committee — to your point, Chair, about the Ombudsperson coming back to this committee? Or will he just go off and do the work?

S. Hamilton (Chair): Correct me, Deputy Chair, but it’s my understanding the next piece of his work would be to submit a budget for consideration to this committee. Then we would advance that to the Minister of Finance to appropriate the funds for the investigation.

C. James (Deputy Chair): If this motion passes, I believe we’d have to look at terms of reference first. It’s hard for him to look at a budget unless he knows what the terms of reference are.

S. Hamilton (Chair): You’re absolutely right. My mistake, absolutely. Depending upon how the terms of reference fall out, then he would come back to this committee with the budget submission, hopefully in fairly short order. Then we can advance that to the Minister of Finance for appropriation.

J. Yap: Following that, Chair, he would be free to undertake the investigation and exercise his discretion without having to report back to this committee.

K. Ryan-Lloyd (Clerk of Committees): Unless the committee directs otherwise, I would presume that the Ombudsperson would report out in the same manner that the act currently provides, which would be to provide a public report to the Legislative Assembly. If the Legislative Assembly was in a period of adjournment, it
[ Page 1499 ]
could be deposited with the Office of the Speaker. There’s a process for public release in those circumstances.

Whether or not the committee wants to wade into a reporting relationship of any kind beyond the budgetary aspects, or even the concept of even an interim report or something along those lines, would be in the hands of your committee and any other directions to the Ombudsperson.

C. James (Deputy Chair): Just to echo that, I think we’ll go through the motions, and we’ll have this discussion. But if it goes the route that it appears to be going, I certainly think we should have a discussion as a committee around getting an interim update, having the Ombudsperson come to the committee and give us an update on how things are going just so we can keep track of the kinds of issues that have been raised and the process as it goes along.

S. Hamilton (Chair): I would imagine if he runs into difficulty throughout the course, he’ll be knocking on our door.

G. Heyman: Just to the point made by the Deputy Clerk, the Ombudsperson’s Act actually says with respect to a referral from the Legislature or from a committee that the Ombudsperson will report back in a manner that the Ombudsperson sees fit. Unless asked or directed otherwise, it’s up to the Ombudsperson.

My presumption is that if it’s a referral from a committee, the Ombudsperson might well choose to report back to the committee prior to reporting to the Legislature. It’s not explicit in the act, but I think it may be implicit.

Seeing no further comment, I’ll call the question on the motion. All those in favour? Opposed? Jane, we’re just voting on the motion. I called those opposed.

K. Ryan-Lloyd (Clerk of Committees): I’m in the hands of the committee to assist with any next steps now that the formal motion has been made and adopted by the committee to refer the matter of the Ministry of Health terminations to the Office of the Ombudsperson for investigation. I would certainly be happy to work with the Chair and the Deputy Chair in preparing an outline of a potential terms of reference, but I would be very appreciative of any direction or guidance from the committee as to what you would like to see included in that document.

G. Heyman: I think there is a letter that’s been tabled at the committee today from Carole to both Scott and Kate with what I think are broad terms of reference but terms of reference that don’t limit the Ombudsperson particularly and certainly open some doors. I’d be happy to leave the further development to the Chair and Deputy Chair, with assistance from the Ombudsperson’s legal staff, but with a report back to the committee and a final determination of the committee.

C. James (Deputy Chair): Just to add to that, I think the opportunity for everybody to put forward any ideas or any thoughts they have around the terms of reference is important. I take Dan’s point around not limiting, but I think there’s a balance there as well.

I think that because of the circumstances and the way this is brought forward, the more we can be broad but include areas that may or may not be looked at builds that public confidence.

C. James (Deputy Chair): I think that is part of looking at building public confidence. Making sure it’s specific enough to include broad areas — without saying that those areas must be investigated but to say these areas can be looked at — I think will help build that public confidence, to say that it’s not limiting.

My worry about having very broad terms of reference is that you basically say to people: “Well, they’ll look at whatever he wants to look at or whatever he feels he wants to look at.” I think we need to make sure we include things like the RCMP and the government and employees, former employees, etc., just so people know that there is an ability for the Ombudsperson, if he determines, to go and look in those particular areas.

That’s the balance that I believe we have to strike as a committee. I think it’s important that whatever draft is developed comes back to the committee. We don’t necessarily have to meet. We can do a conference call to give people the chance to be able to give their feedback, to send it in early and then come on a call together to be able to take a look at it and, with the feedback from the legal counsel for the Ombudsperson, to let us know where the jurisdictional parameters are that can or cannot be looked at in this process.
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S. Hamilton (Chair): Thank you, Carole. We’re on the same page. That thought popped into my mind, too, regarding public confidence. It also speaks to what Eric was saying a little earlier with respect to the wording, suggesting that it not be limited to — you know, anything else the Ombudsman comes up with that he thinks…. And again, talking about: well, if it leads you in that direction and he wants to keep going, we don’t limit it through a prescribed terms of reference.

M. Morris: Further to what Carole was saying, when I first read the letter, Carole, it seemed quite prescriptive to me, so that’s the only caution. After listening to you speak, I agree 100 percent with what you’re saying. The bottom line is that the terms of reference have to be very broad to give him the ability to, like I said, roll over every stone that he comes across.

Anything further to come forward to this committee? Seeing none, I’ll take a motion to adjourn.

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Chair:	Wm. Scott Hamilton (Delta North BC Liberal)
Deputy Chair:	Carole James (Victoria–Beacon Hill NDP)
Members:	Dan Ashton (Penticton BC Liberal)
	Eric Foster (Vernon-Monashee BC Liberal)
	Simon Gibson (Abbotsford-Mission BC Liberal)
	George Heyman (Vancouver-Fairview NDP)
	Gary Holman (Saanich North and the Islands NDP)
	Mike Morris (Prince George–Mackenzie BC Liberal)
	Jane Jae Kyung Shin (Burnaby-Lougheed NDP)
	John Yap (Richmond-Steveston BC Liberal)
Clerk:	Kate Ryan-Lloyd

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