Finance and Government Services — Issue No. 68 — Wednesday, September 9, 2015 (HTML)

Present: Wm. Scott Hamilton, MLA (Chair); Carole James, MLA (Deputy Chair); Dan Ashton, MLA; Spencer Chandra Herbert, MLA; Eric Foster, MLA; Simon Gibson, MLA; George Heyman, MLA; Claire Trevena, MLA; John Yap, MLA

2. The Committee considered the draft special directions regarding the July 29, 2015 referral of the Ministry of Health terminations file to the Ombudsperson.

3. Resolved, that the Select Standing Committee on Finance and Government Services approve and adopt the Special Directions as presented today, and that the Chair, on behalf of the Committee, formally transmit the Special Directions to the Ombudsperson at the earliest available opportunity. (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
Ombudsperson Referral: Draft Special Directions	1501

S. Hamilton (Chair): Good morning, everyone. On today’s agenda is consideration of the draft special directions regarding the July 29, 2015, referral of the Ministry of Health terminations filed to the Ombudsperson.

K. Ryan-Lloyd (Deputy Clerk and Clerk of Committees): Yes, I’d be happy to provide committee members with some background on the document that has been circulated with regards to this morning’s meeting.

The document that has been circulated to committee members has undergone a process of development over the last few weeks. Members will recall that on July 29 the committee adopted a motion to formally refer to the Ombudsperson the matter of the Ministry of Health terminations file.

With input from the Deputy Chair and the Chair, some preliminary special directions were prepared and shared with the Ombudsperson. The draft document that has been circulated today reflects both the input from the Deputy Chair and the Chair and the Ombudsperson with respect to providing some further details with regards to the motion that was adopted on July 29.

If members have the document in front of them, I can simply walk us through various sections of the working draft that has been prepared for your consideration today.

Paragraph 1 simply restates the motion that was formally adopted. In paragraph 2, there is a reference to the opportunity to prepare special directions to the Ombudsperson, similar to a terms of reference for the investigation. The notion of special directions actually comes to us from the Ombudsperson Act. Section 10(4) of the act provides for special directions to be provided on a direct referral from a committee of the Legislature.

Paragraph 3 outlines various commitments that have been made by government to support a fulsome investigation process. Each of those has been outlined there, and many of those have been discussed in some detail in previous meetings of the committee.

Paragraph 4 outlines in considerable detail the actual subject matter that the Ombudsperson has been asked to investigate. These are specific details which arise directly from the committee’s referral of July 29.

As members can see, there is some detail there, and 4(a) outlines the particular terminations of specific employees and, in sub (b), the contractor Dr. Warburton. In addition to the events leading up to the terminations in paragraph (c), there is a recognition, as well, that the investigation would include a review of statements regarding the involvement of the RCMP. But it also recognizes, in the language that has been prepared in 4(c), the jurisdictional limits of the Ombudsperson’s authority to actually review actions by the RCMP, so the focus instead is on information statements provided by government to the RCMP.

The final two subsections in paragraph 4 recognize that the Ombudsperson will be able to determine as applicable any related involvement with respect to the funding contracts and data access of a number of pharmaceutical programs. As well, in the final subparagraph, subsection (e), as applicable, the Ombudsperson may also include a review of the actions and involvement of various offices that have been listed there. There is an extensive list, as members will see.

With respect to the investigative process, the draft special directions recognize that the Ombudsperson has all of the authorities to conduct his investigation subject to the Ombudsperson Act and to those procedures that he considers to be necessary and appropriate. But there is also some discretion provided to the Ombudsperson to limit the scope of the investigation should there be another investigative or adjudicative process underway.

In particular, I know that in a discussion with the Ombudsperson last week with the Chair and the Deputy Chair, there was some discussion as well about the involvement of the Office of the Auditor General. We can provide members with more information on that note. Just to ensure that there is no duplicative process underway — that is essentially our understanding of the approach that both offices will be managing.

Paragraph 6 outlines a request for the Ombudsperson to provide to this committee a detailed supplementary budget submission, for your review and approval, to support the investigative work that will be planned for this current fiscal year. For the forthcoming fiscal year, any additional funds would be incorporated into an annual budget submission from the Ombudsperson’s office in conjunction with your usual process later this fall.

The final section on reporting outlines the opportunity for the Ombudsperson to provide any interim reports to this committee which might be deemed necessary on any budgetary or administrative matter, or if there are any material impediments to the investigation which the Ombudsperson feels necessary to bring to the committee’s attention. But in essence, the final report’s provisions would see the public report being presented to the Legislative Assembly, as a means of making it public, at the conclusion of his investigations. Those details are in the final subsections, (c) and (d), of paragraph 7.

At a very high level, that is an overview of the special directions that have been prepared, by the process that I
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have described. We would be pleased, I’m sure, the Chair and the Deputy Chair, to answer any questions that you might have.

Before I go to the committee, I’ll reiterate that the Deputy Chair and I had the opportunity, along with Kate, to meet with the Ombudsperson last week. We had a fulsome discussion regarding the terms of reference. He had provided a considerable amount of feedback, which, for all intent and purposes, I feel free to say, was adopted. It was his belief that it was going to make it a lot easier for him to do his job.

I think we’ve pretty much done everything at this point to clear the decks, so we’ll go to discussion from the floor with regard to the terms of reference.

C. James (Deputy Chair): Thank you for the work that was done on this. I just want to take us back to the discussion we had at our last committee meeting, when we were talking about developing these terms of reference. I think what I’m pleased about is that the terms of reference really have struck that balance between making sure that it was open-ended and that the Ombudsperson felt comfortable to be able to investigate what needed to be investigated, but also have enough specifics in here that people felt that things weren’t being left out. I think that was really our discussion last time.

By listing some of the areas that may be looked at as the investigation goes on, that gives reassurance to researchers and to the public that things aren’t off limits — that basically, this is an open process and an opportunity for the Ombudsperson to be able to investigate where the path of investigation takes him. I was pleased to see that balance between putting specifics in there but also being clear that this isn’t only limited to but in fact are just areas that may be explored. I think that was a plus.

I also want to say thank you to the Ombudsperson for No. 3, where he kind of pulled together the bits and pieces that had been in my original letter and in the discussion we had in the committee to be able to list all of the conditions that were put in place to make this go forward, which, again, I think, for the public, will give them some reassurance that all of that’s combined and is in a list together.

I think it was a positive process. As the committee knows, it’s not the direction, necessarily, that we wanted to head, but I think this is has been a positive process to pull together the terms of reference.

G. Heyman: I’ll just say that I think we’ve come a long way. Certainly, the input of the Ombudsperson, in considering drafts of the terms of reference that were forwarded, was useful. I’m pleased to see under “Subject matter” that, as Carole pointed out, there is a clear list of a number of issues that various people have considered were of concern but that the introduction clearly allows the Ombudsperson to expand the scope to other areas if he deems it appropriate, depending on what he hears.

As Carole said, we would have preferred a public inquiry. I hope, as this process unfolds, that the fact that it is conducted in private under the Ombudsperson Act doesn’t become an impediment to public trust in the process or to the trust that the people who were directly impacted by being terminated have in the process. I trust that the Ombudsperson will be sensitive to those issues and hopefully will find some way to address them.

Clearly, his ability to refer to professional bodies or various enforcement agencies if he thinks something has taken place that is either illegal or a matter of ethical or professional misconduct would, quite possibly, lead to a more public and open process in those cases.

I’ll just close by saying that from my perspective, I think we’ve come a long way. I wouldn’t call this an ideal process or the process that the people who are directly impacted wished to see, but hopefully, it is process that will yield information for both the directly impacted employees, contractors, others and the public.

S. Chandra Herbert: No, that’s all right, thank you. Just getting up to speed.

C. Trevena: Like Spencer, just getting up to speed. Thank you all very much for the work on it.

S. Gibson: I appreciate the work that’s gone into this. I acknowledge that this is a really important exercise.

The only thing I would like to make a comment on is that there’s no mention here of — and I don’t want to be critical — frugality in any way. Now, I get that we want to do a good job. Don’t hear that.
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Like, for example, in “Investigative Process,” where we’re talking about some of the limitations, I would have hoped that we would have had some kind of a line in here: “While the Ombudsperson will make every effort to do a rigorous job, to be mindful of budget constraints.”

There’s no sentence in here anywhere about frugality or sensitivity to financial constraints. I think that would’ve been valuable, even just as a courtesy, to say that we recognize that the public is going to put a lot of money into this exercise. And it’s all good. I’m not criticizing that at all. It’s laudable. But there’s no caveat anywhere in here at all that says, under “Budget” or otherwise, that we’re going to do it in a way that is sensitive to the needs of the taxpayer.

I would like to have seen that in there. I regret that it isn’t. It’s not a deal-breaker for me, but I would like to have seen that in there, frankly, Mr. Chairman.

S. Hamilton (Chair): If I may, we will next week be having the discussion with the Ombudsperson regarding his budget submission. It might be an opportunity for you to impart your concerns on it then. I think he’s moving forward with the understanding that he’s to do a fulsome job and that, for the most part, whatever that takes is what he’s going to ask for in terms of a budget request.

K. Ryan-Lloyd (Clerk of Committees): Should the committee adopt the special directions which have been prepared for today’s meeting, I would imagine that we would convey those to the Ombudsperson by way of a letter of transmittal, likely later today. The suggestion, perhaps, that Simon brings forward could be drawn to the Ombudsperson’s attention with respect to any instructions to assist him in the preparation of budget documents, which will be in your hands later this week.

That’s one opportunity, if there is an interest. Or, as the Chair suggests, that’s certainly a point of some discussion with the Ombudsperson. He has agreed to appear before the committee next Tuesday, September 15, at 9 a.m. That is at the outset of your budget consultation process work that you will be beginning in earnest next week. But we have set aside some time for initial budget discussion with him at that time.

S. Gibson: Please don’t hear my comments as a desire to limit the process in any way. But I think it’s desirable also that the committee sends the message that frugality is also something we value.

Secondly, I would like to comment. There’s no real mention here of time frames. Mr. Chairman, I wonder if you could speak to that.

S. Hamilton (Chair): Yes, I can speak briefly to it. We did have the discussion with the Ombudsperson about timing and when we might expect some reporting out. We didn’t really feel it was appropriate to try to prejudge the length of time this investigation is going to take. I don’t even think the Ombudsperson completely understands the full scope, and he’s not going to know a lot of this until he starts going down some of these roads.

I would imagine, through some of the discussions we’ve had with him, that he would be able to give us some indication of how he’s progressing in terms of his investigations, and we might have a better understanding of that after he’s had an opportunity to take a good, hard look at what it is we’re asking him to do.

C. James (Deputy Chair): We did have a discussion around whether a draft date or a draft expectation should be there. I think, understandably — and I think it fits with the budget issue you’ve raised as well, Simon — the concern is that it will look like it’s limiting any kind of investigation — whether it’s a timeline, and you say you want something by a certain time, and the investigation is taking longer or witnesses are taking longer or the combining of all of the information is taking longer.

Similarly on budget. I expect that when we have the budget documents come forward, we’ll have a good, thorough discussion around the budget that the Ombudsperson feels is required for this investigation. But particularly given the circumstances of this issue, I would not want to give any impression that there were limits to the investigation. That would be my concern with either a timeline or a budget constraint. It could be seen as the committee trying to hinder the investigation that’s going on, and I think that’s the last thing that any of us want.

S. Gibson: I concur, particularly to the latter point. The only caveat I would like to add is that I think once the Ombudsperson understands the magnitude of the issues, it would be desirable that this committee receive a more structured timeline, not just for accountability but for our own peace of mind. I think an exercise like this could take on a life of its own, and none of us want to see that. We want to see this concluded in a way that’s timely and sensitive — and also understanding the gravity of the issue, frankly. Those are really my two comments.

The last thing I’d like to add, on a very, very minor thing. On page 4, it says: “The Ombudsperson shall publish and publicly distribute the report in print or….” I think that should be “and.” A minor, very minor, quibble.

Thank you for allowing me to make those comments. Really good to be a part of this committee. This is an important issue, and I look forward to this unfolding in a way that’s in the best interests of everybody involved.

D. Ashton: Just quickly. Will there be interim reporting coming back from the Ombudsman or the Ombudsman’s office to us as a committee?

S. Hamilton (Chair): I do not believe so. Under “Reporting,” section 7, paragraph (a), it may, at the Ombudsperson’s discretion.

I would imagine…. I don’t know any reasons for that, but it could be a variety of opportunities that he might want to take to come back in front of the committee.

C. James (Deputy Chair): We had a discussion with the Ombudsperson about reporting and giving us interim reports about how the investigation was going. I think the ability to have this included…. The discussion that we had with Mr. Chalke was that if something was going awry in the investigation, if there were some challenges — for example, something hadn’t been implemented that the government had committed to implementing — this would give him the ability to be able to come back to the committee and say to the committee: “There’s a challenge here. I need the committee to address it, or I’m not able to meet your special directions.”

It was good reassurance having it in there that this will provide the opportunity for the Ombudsperson to come back to the committee, not to give us details of what’s going on in the investigation before the report. We all were clear that that’s not what is required. But if there is a challenge, there will be the ability to come back and report to the committee and for us to have some accountability around what we’ve agreed to and what we’ve directed on special directions.

D. Ashton: It was not my intention for that to be anything put forward to the committee. What I was just asking was: is there an opportunity, or will there be opportunities, that if something does fall off the rails, he can come back and say there’s an issue?

G. Heyman: Just in response to Simon and others, I understand people’s concern about a process that has an end point, but I would echo Carole’s caution, in particular. Because this process is not public and no one can actually see how it’s proceeding, I think, too, we have to trust the Ombudsperson to understand that an important part of his role is to do a thorough job but also to provide answers.

To appear to be directing him to get a move on, I think, would raise many questions that shouldn’t be raised in terms of the integrity of the process or whether the Ombudsperson is being fettered in any way. Because, as I said, the process is a private one, I think we need to be extremely sensitive to that.

S. Gibson: A quick question to Kate: do we anticipate a detailed budget — in other words, quite an elaborate budget — or is it going to be sort of just bullet highlights — the budget document that we’ll be receiving in due course?

K. Ryan-Lloyd (Clerk of Committees): I have only had a preliminary discussion with the Ombudsperson about the budgetary submission. I know that they are aiming to have that to the committee by the end of this week so that you can consider it next week.

In keeping with all of the practices that the committee has evolved with respect to detailed budgetary submissions and templates and that, I think the office would have a good understanding that the committee does prefer a higher level of detail, as much as possible. Certainly, a breakdown by STOB of the various categories of expenditure would be helpful and any other details that are known to the Ombudsperson. We will encourage that through the letter of transmittal later today.

By Friday, when you actually receive the budget documents, if there are other details that you would like to have in hand prior to the meeting next Tuesday, please don’t hesitate to let me know. We can convey those to the office to make sure you have a complete set of information to support your decision-making.

D. Ashton: Mr. Chair, if there is no further discussion, I have a motion that I’d like to put forward.

D. Ashton: At this point in time, I would move that “the Select Standing Committee on Finance and Government Services approve and adopt the Special Directions as presented today, and that the Chair, on behalf of the Committee, formally transmit the Special Directions to the Ombudsperson at the earliest available opportunity.”

If there are no further items to come forward to this committee, I’ll look for a motion to terminate.

S. Hamilton (Chair): Before we all disappear, I’d like to take the opportunity, first of all, to thank both Gary Holman and Jane Shin for their work on this committee — Gary the last three years, I guess. This would have been his third. Jane — it would have been her second. I thank them very much for all their hard work and their dedicated service to the committee.

I would like to welcome Spencer and Claire. I look forward to spending a few solid weeks on the road with you. The committee has been a lot of fun the last couple of years, and I’m sure we’re going to continue in that theme. Welcome. Thank you very much.

S. Hamilton (Chair): Okay, that’s it. Good morning, everyone. Enjoy the rest of your day. We’re adjourned.

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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)
	Spencer Chandra Herbert (Vancouver–West End NDP)
	Eric Foster (Vernon-Monashee BC Liberal)
	Simon Gibson (Abbotsford-Mission BC Liberal)
	George Heyman (Vancouver-Fairview NDP)
	Mike Morris (Prince George–Mackenzie BC Liberal)
	Claire Trevena (North Island NDP)
	John Yap (Richmond-Steveston BC Liberal)
Clerk:	Kate Ryan-Lloyd

REPORT OF PROCEEDINGS(Hansard)

SELECT STANDING COMMITTEE ON FINANCE AND GOVERNMENT SERVICES

REPORT OF PROCEEDINGS
(Hansard)

SELECT STANDING COMMITTEE ON
FINANCE AND GOVERNMENT SERVICES