The committee met at 9:05 a.m.

[J. Routledge in the chair.]

J. Routledge (Chair): Welcome, everybody.

I’d like to begin this meeting by acknowledging that I’m joining you from the unceded traditional territory of the Coast Salish people.

Welcome to this opportunity to present what you’re doing and what you’re budgeting for. We’ll proceed with your presentation, and then there will be an opportunity for members of the committee to ask questions.

Over to you, Michael.

Review of Statutory Officers

OFFICE OF THE INFORMATION
AND PRIVACY COMMISSIONER
AND REGISTRAR OF LOBBYISTS

M. McEvoy: Thank you, hon. Chair. Good morning, everyone — Deputy Chair and members of the committee.

Before I begin, I would like to acknowledge that the place I’m presently standing on is the traditional territories of the Lək̓ʷəŋin̓əŋ people, known today as the Songhees and Esquimalt Nations.

Let me also begin today by introducing to you my deputy commissioners, oline Twiss and Jeanette Van Den Bulk, as well as our senior communications manager, Michelle Mitchell. I’m also joined by Dave Van Swieten, who is the executive director of shared services, who serves in this capacity for the four officers of the Legislature. We are all headquartered at 947 Fort Street here in Victoria, British Columbia.

This morning I will be presenting to you the budget and service plan for both the Office of the Information and Privacy Commissioner and the office of the registrar of lobbyists for British Columbia. I serve in both capacities. I’m going to focus my address on four specific requests and why those are essential to providing our services to British Columbians.

The COVID-19 pandemic has affected almost every facet of our lives as citizens, none more so than our connection with digital technologies that have accelerated explosively, changing how we work, how we learn, how we connect with loved ones, even how we see our doctor. Indeed, that is the basis for our presentation this morning.

What hasn’t changed, however, is the need for robust access and privacy rights. In fact, their importance has been magnified by the current crisis. As a regulator, the pandemic has, more than anything, called upon my office’s role as dispenser of guidance and advice to a wide array of interests, from businesses and schools, educators, to seniors, many of whom are navigating the digital ecosystem for the first time.

It is for this reason that one of my key priorities as commissioner is to be proactive in addressing privacy issues that emerge as a result of these new technologies. More than ever, privacy and security questions arising from these technologies are front and centre — the investigation reports, audits and guidance that my office is producing. Facial recognition technology, geolocation tracking and video surveillance are just a few of the complex matters we have examined since I last addressed the committee. I will briefly summarize just some of this work.

In February, I launched a joint investigation with my counterparts in Alberta, Quebec and Canada into Clearview AI. The investigation, still ongoing, looks into allegations that Clearview AI used its technology to extract billions of images of people from the Internet and created a facial recognition tool to be sold to law enforcement organizations in Canada. The release of the investigation is imminent, and I also expect that there will be guidance issued on the use of facial recognition technology by law enforcement to follow shortly thereafter.

In June, my Ontario colleague and I concluded a joint investigation into the massive LifeLabs privacy breach. Undoubtedly, most members of the committee will have been amongst the many British Columbians affected by this breach. We publicly issued our findings and orders resulting from our work, detailing, among other things, the company’s failure to protect the personal health information of millions of Canadians.

[9:10 a.m.]

Regrettably, the details of the report are still being kept from the public because of court challenges by the company. The Ontario commissioner and I are vigorously taking issue with these challenges. What I’m able to share with you is that we ordered LifeLabs to implement a series of measures to address the failures we found. We could not have completed this complex task without the aid of the technology experts on our respective teams. I can report that the company has since complied with our orders.

Also in June, along with colleagues in Alberta, Quebec and Canada, we launched a joint investigation into Tim Hortons and its parent company, Restaurant Brands International, because of reports that the company’s app was deploying persistent geolocation tracking. We are investigating whether the Tim Hortons app is compliant with our privacy law. It is, again, a highly technical investigation that is ongoing as I speak with you this morning.

Finally, in November, I initiated a review of B.C.’s licensed private liquor and cannabis retailers. Our review focuses on the privacy management practices of those companies and will include questions about retailers’ use of video surveillance and whether or not they employ facial recognition technology. I expect that we will publish an aggregate report summarizing our findings this year.

I’m sure that by now you have sensed a theme common to these investigations. They have involved complex technologies requiring considerable expertise to dissect and analyze. We anticipate that these demands will only continue to increase.

New technologies, network systems and changing attitudes towards information-sharing are game-changers. Information rights have never been more urgent or more complex, and everything is moving so very fast. If we are to properly serve and protect the privacy rights of British Columbians in the digital age, we will need the resources of technical and security experts to assist us with our investigations and audits.

In some of the cases just mentioned, we have contracted for that expertise. In others, we have had to rely on the skill sets provided by other offices to do the security and technical assessment of the investigation. The latter leaves us with a significant knowledge gap in cases where we do not have a partnership in place.

We have done a careful assessment of our needs and have determined that it is more cost-efficient to contract out this expertise on a case-by-case basis rather than add a position internally, as each investigation demands its own unique needs. Therefore, I am asking the committee for an additional $100,000 for my 2021-22 budget to support my office in engaging experts and technology for investigations and audits and in developing appropriate guidance. This would provide us with access to the right experts at the right time to support sound oversight over the privacy practices that impact British Columbians.

Now I’d also like to turn to the office of the registrar of lobbyists, or the ORL. The Lobbyists Transparency Act, or LTA, designates me as the registrar for the ORL by virtue of my position as Information and Privacy Commissioner. My responsibilities as registrar under the LTA include a mandate to establish and maintain a registry for lobbyists and to oversee and enforce compliance with that act.

It is worth recalling that the purpose of the LTA is to support public trust in government decision-making. The Organization for Economic Cooperation and Development report Lobbyists, Governments and Public Trust highlights the direct correlation between public trust in politicians and transparency in government decision-making. B.C.’s lobbying law requires individuals whose communications with public office holders meet the LTA’s definition of lobbying to register that fact and to submit other required information to the registry.

My team and I are responsible for making sure that that information is publicly available in an easily searchable online registry. It is through this that the public is given a window into who is lobbying our public officials and on what matters. It is important that this morning I update you on matters related to recent amendments to B.C.’s lobbying law and its impact on my budget.

The changes enacted in May 2020 further enhance transparency in lobbying communications. They include but are not limited to a requirement on the part of lobbyists to report monthly on lobbying activities directed at senior public office holders; to report political and other specified contributions made to a Member of the Legislative Assembly or their political party or constituency association since the last provincial election; to report gifts given or promised to public office holders, including the value of the gift, a description of the gift, to whom it was given or promised, and the circumstances; and to report who controls, directs or funds lobbying.

[9:15 a.m.]

Taken together, these and other changes required a significant overhaul of the lobbyists registry. To accomplish this, we secured, at no cost, the licence for the federal lobbyists registry system, which we adapted to B.C.’s needs. At the same time, these changes also necessitated supporting the lobbyist community making the shift to the new system as a result of the amendments, as well as educating public office holders and the public alike about them.

I’m pleased to report that my team successfully transitioned to the new lobbyists registry on May 4, 2020, despite finding ourselves in the midst of the pandemic. As I previously stated to the committee, the new registry contains new advanced-search functionality. This was one of the advantages of licensing the federal registry, and it will serve to further enhance transparency and lobbying activities in B.C. I accomplished compliance with the LTA through a range of tools, including education, verification of information in registrations, compliance investigations and levying administrative penalties.

As you can imagine, demands in these areas have increased with the new amendments. Since May 4, we have seen a 354 percent increase per month in the volume of requests for information. We have also seen an increase in verification of registrations, an important step in supporting lobbyists by ensuring that information entered into the lobbyists registry is accurate. We are on track this year to complete 1,512 verifications, up from 317 in the 2019-20 fiscal year.

To manage this increase in demand on ORL staff, we got creative and temporarily reallocated resources from the OIPC team. This was manageable only due to a minor and, we believe, temporary reduction in the files at the OIPC due to the COVID-19 pandemic. Reallocating resources allowed us to publish 15 guidance documents, 13 more than we had initially planned, to support front-line staff in meeting the increase in demand for service, as well. In addition, updates have been made to the ORL website to support those front-line staff in assisting lobbyists, including an enhanced FAQ section with a built-in search feature.

All of these demands will continue. Reallocating OIPC resources is not a sustainable solution. The ORL needs to further scale up our front-line resources and education plan in order to adequately serve lobbyists and the public. Therefore, I am requesting additional resources to support ORL operations under the recently amended LTA, with two full-time staff resources starting in the ’21-22 fiscal year. The additional FTEs would directly support the front-line staff responding to increased traffic volume to the registry resulting from the amendments. They will also be deployed to strengthen awareness about the LTA.

The new registry also requires ongoing maintenance to ensure that it supports the underlying transparency objective of the legislation. This includes maintenance work such as fixing bugs and fine-tuning the registration process so that it fosters greater compliance.

Maintenance work also requires supporting updates to keep hardware current and secure. As the registry system is more sophisticated than the previous one and manages a far higher volume of traffic, we estimate that the ORL will need an additional $75,000 per year to maintain it. This would augment the $50,000 we have in the ORL budget for maintenance and would meet the demands for both software and hardware maintenance for the new ORL system going forward.

I’d also like to spend my final few moments summarizing the final two elements of our budget request for 2021: inflationary costs and updating our case-tracker system. The majority of my budget for the two offices consists of salaries and benefits. We have a staff complement at the OIPC and ORL of 41 positions. For the forthcoming fiscal year, 2021-22, my office is faced with an adjustment of $191,000 in inflationary costs, which includes $126,000 for government-mandated salary permits and adjustments, an increase in building occupancy of $37,000, an increase in our shared services costs of $22,000 and an increase in our information system costs of $6,000.

I have reviewed our budget in detail and have determined that we have exhausted any flexibility. Therefore, I am unable to absorb these cost pressures without reducing staffing resources and disrupting service to British Columbians.

I’m also requesting $90,000 for my office’s share of the cost to replace the case-tracker system for the officers of the Legislature that share corporate services at 947 Fort Street.

[9:20 a.m.]

We have a separate presentation on this item later, as you probably know, this afternoon, so I will reserve my detailed comments and any questions that you may have on this item for that time.

To recap, I have four requests: technical expertise on a contractual, case-by-case basis; an increase in operating costs to support the increase in demands to the ORL; my office’s share of the costs to replace the case-tracker system; and finally, an adjustment to cover inflationary costs.

The combined operating budget request to cover these new and ongoing cost pressures is, therefore, an increase of $647,000, for a total operating budget of just over $7.5 million, with a capital budget of $54,000 for the 2021 fiscal year. This represents an increase of 1.44 percent to secure expertise in the technology department, 4.09 percent to support the ORL operations under the amended legislation, 1.04 percent for the case-tracker replacement, as well as 2.75 percent for inflationary cost pressures. This represents a total budget increase of 9.32 percent compared to the current fiscal year.

I would like to acknowledge the talented teams I work with at the OIPC and the ORL. Every day the demands, as you can imagine, have been extraordinary, particularly over the last number of months. They bring a commitment and expertise to their work and service to the people of B.C. that is really unparalleled. I really do feel privileged to work with all of them.

Chair, that concludes my remarks. I thank you for your attention this morning. My team and I would be pleased to answer any questions that you may have.

J. Routledge (Chair): Thank you, Commissioner. Now I’ll open it up to questions from the committee. It looks as though we found your presentation very thorough — and the supporting documents.

Does anyone just want a minute to collect their thoughts and think about…?

L. Doerkson: I have a quick question, Chair.

Mr. McEvoy, I just wanted you to expand, if you wouldn’t mind, a little bit on the additional technical support. So $100,000 in this day and age doesn’t seem to go very far. I just wondered if you could expand a little bit on that.

M. McEvoy: Thank you for the question.

We were trying to be focused in our requests. I can say to you that when we did the LifeLabs investigation, which was a highly technical matter, as I mentioned, we spent approximately, on that investigation, about $30,000. We have to carefully pick and choose the investigations we are going to undertake over the next year. Resources are, obviously, not unlimited.

As we look forward, I’m going to…. We’re projecting to do about five audits investigations over the coming year, of which I can very well see that at least, probably, three or four of them are going to be a deep look into technology — the health sector, in particular, I would point out. For any of you, I’ve just recently had a doctor’s visit, virtually. The privacy and security issues around some of those matters are significant, but not just in the private sector. In the public sector, as well, in the health sector here in British Columbia, we want to have a close look at it. Pulling back the curtain will require technical expertise.

In thinking about three or four investigations realistically, I think, it’s probably around the $100,000 mark to sustain the proper expertise we need to undertake that. Again, with resources not being unlimited, we will stay focused and targeted and undertake those investigations that we think have the broadest impact on British Columbians.

P. Alexis: A really thorough report. Thank you very, very much. I just have a couple of questions. One is just a small technical one.

[9:25 a.m.]

On one of the documents — I’m sorry; I can’t remember which attachment — it does ask for $622,000. But I know that further in the document, it actually says $647,000. I know that $647,000 is what you mentioned today, but it was page 1 of the document that says: “Select Standing Committee on Finance and Government Services.” We just might want to clarify and make that figure $647,000.

The second question is: moving forward in COVID recovery, do you foresee any further changes in the use of technology? Do you think we’ve peaked, or do you anticipate that you’re going to be having to react to even more increase or uptake in the use of technology?

M. McEvoy: Many of the uses of technology during this pandemic have existed. What I think the big difference is, is the acceleration. I think we can all feel it. I mean, from retail, which was online before, it has exploded — you know, the big retailers.

I mentioned the health care sector. We have been quick. Our staff has been really on the case with respect to giving guidance in a number of areas. That would include the education sector — more distance learning, right? For those of us who are former trustees — they’re on the committee, and I know the member has been, as well as member Dykeman — that has really radically changed things. It wasn’t that it wasn’t there before, but it has accelerated it. We’ve got to make sure that those platforms are privacy-protected and secure for our kids.

I mentioned the health care sector. Even in workplaces and for seniors — often the very first time that seniors have been online — we hear about it all the time. Our office combined with the seniors advocate, Isobel Mackenzie, to put together some guidance for seniors — things to look for when they’re on the web, either for retail or other things — to protect them. I think the demands of these technologies are only going to continue to increase. Society’s awareness is going to increase.

We, as regulators in the field…. I say we. It’s our office; it’s my colleagues across the country. But it’s other offices like the Ombudsperson, who we are now working with, for example, on artificial intelligence and its application in government. We want to make sure that it’s fair and that it’s protected. Our office is working with others. Our office is working across the country to ensure that we are going to address the concerns of Canadians, but those demands are only going to continue to grow.

P. Alexis: Thank you so much. Lots to think about.

B. Stewart (Deputy Chair): Commissioner, thank you very much for that very thorough and insightful look into your operations.

Having been on this file for some time and been the minister responsible…. Considering what you just said, I’m really wondering: have you given the view as to what the future should look like in terms of protection of privacy for individuals and the protection of privacy of individuals through things like LifeLabs — I hate to use them as an example — which is one of these companies that have been exposed to or subjected to an exposure?

I guess what I’m really kind of…. Is this change that you’re proposing, with a couple of extra individuals and some contracting out, going to get you to where you can make the Legislature feel comfortable that, going ahead, we have certainty in this area and are not feeling that we’ve lost ground?

M. McEvoy: Well, you’re exactly right about thinking about not where we are. It’s the old Wayne Gretzky and the hockey analogy, if I may be so indulged. It’s not where the puck is; you need to anticipate where it’s going. And we certainly do. I’ve got an amazing team of people who stay on top of the latest in technology issues as they affect British Columbians.

It is also an important reason why members of the Legislature have to address this issue by reforming our existing legislation, both our Personal Information Protection Act, which governs private organizations in the province, and also the Freedom of Information and Protection of Privacy Act, which governs access and privacy in the public sector.

[9:30 a.m.]

Those laws, when they first passed, were, I think it’s fair to say, probably state of the art, but they have fallen behind. I’ll give you one…. It’s not a small example; it’s actually a big example. If a company breaches your privacy in British Columbia, they have no obligation to tell me that, as the regulator. More importantly, they have no obligation to tell you that, as citizens. In British Columbia, we are, I believe, pretty close to the only jurisdiction in Canada now that does not have mandatory breach reporting for those kinds of violations of people’s privacy. That needs to change.

The committee to reform the PIPA legislation continues to meet. The FIPPA committee…. These committees meet, by the way, every six years to review the legislation. It’s fortunate, I think, the timing. Your question is absolutely timely. We are now in the midst of reviewing that legislation, and I think it’s really incumbent upon on each and every legislator to look at those issues carefully and to advance the cause of privacy, security and access rights for all British Columbia.

The question, Deputy Chair, is very timely. One step at a time in this regard — as we, hopefully, get legislation which has privacy breach notification provisions that allow me as a regulator to impose administrative monetary penalties on bad actors. That will require more support, and that will require a bigger team, but we will take one step at a time. We will advance investigations that cast the greatest public light on some of these issues, and we will use our resources judiciously to do that.

G. Lore: Thank you for the presentation. My question is about the expanded resources for the ORL and might come out of, contrary to our Deputy Chair, being new to this committee.

Given that the changes came into effect in May of 2020, why were there many more reports needed than expected? Was there a request for more resources coming in, in advance of the change? Just what explains that delay?

M. McEvoy: The previous government, in 2017, committed to greater transparency around lobbying issues. It’s something that my office and I had advocated as well.

Some people think of lobbying in pejorative terms. It is not. It is a key part of the democratic system, the key aspect of our legislation. When the Attorney General, still the Attorney General, announced these amendments, it focused on the importance of transparency. That’s the key thing. It doesn’t prevent lobbying. It means that the public can see into the system.

Leading up to that change, we required additional resources to do that. When it came into effect in May…. It’s now clear to us that having experienced the system for a number of months, the volume of matters coming before us, the fact that, for example, registrations have to happen on a monthly basis…. Where lobbyists have engaged in different kinds of, or additional, lobbying activity in a month, they have to report that. All of those reporting requirements, which are good because they add transparency, require front-line support to make sure that people have registered properly. As you can imagine, there are lots of questions.

The other thing I need to say about those amendments is that in addition to additional reports, it has broadened the scope of who is covered. There are many, many more people coming through the registry as a result of that. In the past, there were, perhaps, smaller organizations that weren’t covered but are equally important, because small organizations, as you probably know, can have a big impact on what government does. That’s a good thing, so long as there is light cast on it.

The combination of more frequent reporting and a greater number of people means that our front-line staff were just, frankly, pretty close to overwhelmed at the beginning. We’re trying to get that organized. But we do need more support, both on just answering the phones and holding the hands of lobbyists who are maybe a little bit unsure, especially in smaller organizations, and also out there on educating people about their obligations.

[9:35 a.m.]

What we really want to make sure of is that people are compliant. We do not want to be in a position of having to administer fines. That’s part of my responsibility, but it’s really a last resort. We just want people to comply. Both education and front-line staff will ensure that that happens.

G. Lore: Can I, Chair, if it’s okay, just clarify?

Additional resources were requested in advance of that change, but then the experience of meeting those needs, of doing that educating and of actually living through those changes has demonstrated to your office that more is needed in addition.

M. McEvoy: Yes.

G. Lore: Okay. Thank you.

J. Routledge (Chair): Just on this, I know the format is question-and-answer. As I’m listening to the questions and answers, I’m thinking about small organizations. I think it is important that we…. We don’t want to silence the public. They’re afraid. They don’t know what they’re allowed to do and then self-discipline by not speaking up at all.

M. McEvoy: That’s exactly right. That’s a key part of the work that we’re doing now and the education work. I myself have personally done speaking engagements with the non-profit sector, for example, who I know indicated some concerns about the changes.

I completely get that. Our staff get it. That’s why we spent a considerable amount of time educating. There’s nothing to fear here. We will help, say, hold your hand through the process and make sure that the proper forms are filled out. If there are questions or not understanding how something works…. I think those who have engaged with the registry will tell you that our staff have been outstanding in helping to guide them.

J. Routledge (Chair): Thank you.

L. Doerkson: Mr. McEvoy, just one more question following up on MLA Stewart’s question. Did you say that there is no obligation in British Columbia for a company to alert us of a breach?

M. McEvoy: That is correct. As a matter of course, some companies will do that voluntarily. I have an excellent team of policy experts who can assist those companies, for example, by advising them about whether people should be notified. Is this a serious enough breach that people should be notified? Occasionally a slip of something may not require it, if it’s not going to result in substantial harm. We can assist in that.

That is absolutely right. There is no obligation to do so. That is a serious shortcoming of the law in British Columbia.

L. Doerkson: What strength or what ability do you have, then? I mean, once the infraction is found out by your office…. Perhaps the ABC company has a breach of my banking information, and I make a complaint to your office. What teeth, if you will, do you have at that point to encourage any sort of remedy to that situation?

M. McEvoy: I have some teeth, in the sense that if that organization has not taken reasonable security measures to secure your information, I can order them to take steps to do that. That’s important. That’s something that we do, certainly, and have done on a number of occasions.

What I don’t have the power to do is to administer any kind of monetary penalty on companies, particularly bad actors, where monetary penalties would act as a deterrent. This is a….

You may have seen, or may not have seen, that there has been a law introduced federally now that would give the federal Privacy Commissioner certain additional powers. There’s also going to be, within that legislation, the power to administer fines.

It was at one time thought that it would be kind of a shaming exercise if a company were discovered to have breached their information — the public embarrassment. The goodwill to the company would diminish, and they would make changes. I think most people now believe that’s just not going to be enough.

The order power and the power to fine. The power of fines is, as I mentioned, which I have with the registry of lobbyists, is a very last resort, but it’s there to ensure that companies, looking around, realize it’s going to be way cheaper for them to invest in the privacy and the security of their clients, their patients and all of that up front rather than have to face the consequences if they don’t.

[9:40 a.m.]

British Columbia has to enter the 21st century. The U.S., Europe, my colleagues in the Asia-Pacific, of which we’re key members and key players here in British Columbia…. Our trade flows in the Asia-Pacific. More and more, these laws are being changed around us, which strengthens rights for their citizens. We need to keep up.

L. Doerkson: Thank you. I appreciate that.

J. Routledge (Chair): The next speaker is MLA Kyllo.

G. Kyllo: Thank you, Michael, for your presentation.

Just following up, again, on this lack of a requirement for notification with respect to breach. I’m assuming that this is something that has been top of mind for your organization for a number of years now. I think you mentioned that the drafting of legislation was underway. Do you have any anticipation of when that legislation might be brought forward?

M. McEvoy: I don’t. The personal information protection review committee began its work last year. It was interrupted by the election. The committee has been re-formed. My understanding is that their work will continue shortly. I don’t know exactly what further work is going to be done.

I can say that a major event has happened between the time the committee was dissolved and reinstituted, and that is the federal initiative. Not to get too deeply into the weeds here, but it’s…. British Columbia legislation, provincial legislation, must be substantially similar to federal legislation in order to have a sound legal basis.

Now that the federal government is moving ahead, that’s yet another reason why British Columbia needs to be in step. Our laws need to be…. They’re never going to be identical, but there has to be harmony between the laws.

As you may have gathered from my presentation, when there is a breach nationally that affects British Columbians — it’s a big retailer — it also affects other Canadians. It’s really important that we, as regulators, work closely together.

Alberta, British Columbia, Quebec and federally are the four jurisdictions that have private sector privacy authority. We work very closely together to make sure that companies don’t play us off against one another. It’s also good for the companies because it’s a one-stop shop that they can go to. So that’s the reason we need to make sure our legislation is in harmony.

I would hope that the government is going to look at an initiative this year to advance the privacy rights of British Columbians. Of course, that is for the government and the entire Legislature to determine.

G. Kyllo: Thank you, Michael.

Did you also mention that B.C. is the outlier with respect to not having legislation? Are there other jurisdictions across Canada that don’t have legislation that deals with the mandatory reporting requirement when there has been a breach?

M. McEvoy: No. I think we’re it on the private sector side. The federal authority covers all provinces where there’s no provincial legislation. That would be Ontario, for example. Alberta has breach notification legislation. Ottawa, federally, has it, and Quebec does as well, I believe.

Even if you look south of the border, there are privacy laws. It’s a bit hodgepodge in the United States, but I think virtually every state now in the U.S. has privacy breach notification rules. Europe obviously has that, through their General Data Protection Regulation, as well as the U.K. We are way behind.

I won’t exhaust that topic any further, other than that you can probably feel the frustration in my voice. But it’s not about me. It’s really about our citizens and their ability to be properly protected.

By the way, the previous committee, back in, I guess, 2014-15, recommended these changes. So it’s been a long time in coming. We need the government to take up the issue.

G. Kyllo: Great. Thank you very much. What was the name of the committee that you’re referencing?

[9:45 a.m.]

M. McEvoy: It is the Special Committee to Review the Personal Information Protection Act. Again, that committee has been reconstituted. There is a similar committee that has been named to review the Freedom of Information and Protection of Privacy Act. That’s the public sector law.

Once again, in my view, there should be an obligation on public bodies as well as private bodies to notify people where there have been breaches. Obviously, government has a lot of sensitive information about all of us. So it’s important that they be transparent when those things happen.

G. Kyllo: Great. Thank you very much.

J. Routledge (Chair): Another question, from MLA Lore.

G. Lore: The need to have those resources to contract out and the ever-changing nature of the technology and the use of that technology make a lot of sense to me.

I was wondering if there are efforts or systems being set up to pull some of that knowledge that you gain through contracted-out services to build the in-house knowledge. Although cases might vary quite a bit from case to case, as you outlined, it seems to me that there might be some that appear later and a chance to also, at the same time, bolster the in-house expertise on the changing technology.

I just wondered if you had any thoughts on that.

M. McEvoy: Yes, you’re right. Every investigation. Where we bring in technical expertise, we learn from that, and it becomes part of a greater capacity of our office.

I should say that I’m just, I need to say, really proud of the people that I work with. They care deeply about these issues. They study these issues. They keep on top of the latest issues.

Often what we’re talking about is beyond the conceptual nature. We’re into…. You talk about the weeds. I mean, deep weeds about whether something is, in fact, privacy and protected because of the kinds of technology, the cookie systems, or whatever it might be, that are working. They require a special kind of schooling. They require a special kind of technical expertise.

Our job, as regulators…. My job is to try and take what is often arcane, very complex information and talk to the public about why it matters. That’s a good job of….

You talk about building capacity. Our own policy team, for example…. Our own investigators can take the knowledge we glean from these technical experts and shape it into something that is readily understandable to the public and that also allows us to readily guide and educate.

In many cases, there are companies that are not complying with the law. They’re not sure. They don’t understand. Education is the first route. It has always been my approach. I actually believe people, companies, want to do the right thing. So that’s the first avenue. Where it’s clear that’s not the case, obviously, we will take measures.

Each and every investigation we undertake helps to build that capacity. I still believe, going forward, particularly as the technology evolves, we’re going to need that outside expertise to assist us.

J. Routledge (Chair): Thank you.

We have a couple more minutes. I don’t see any other hands going up to ask questions. So maybe I’ll ask a question.

I represent an urban constituency. My observation is that the more people are packed in together, the more isolated they are from each other. I think there is an odd contrary correlation between privacy and loneliness.

Picking up on your reference to educating the public, I think the work you do to educate the public about their right to privacy and what organizations can’t do is really important. Do you also provide education about what they can do so that people aren’t unnecessarily silenced and isolated from each other?

For example, strata councils. I have had contact with strata councils who think they can’t communicate anything, and it leads to more isolation and loneliness.

[9:50 a.m.]

M. McEvoy: Yeah. By the way, strata councils and the kinds of communication within strata councils are some of the most oft-asked questions we get in the office as to what can and can’t be done. It’s a complex relationship between our legislation and the strata title act, I believe it’s called. There are challenges there. Obviously, there are confidential matters that happen within councils. That’s fair enough. But it’s also…. People share a space, and there are also provisions to ensure that information is shared.

Just on the general topic of what can and can’t be done, one of the things that I have said from the outset of the outbreak of COVID is that the legislation we have in place now…. Whether it’s freedom of information and protection of privacy or the private sector location, that legislation is designed to allow the sharing of information to preserve public safety and health. It is there to ensure that the proper sharing happens. The act is very clear about that.

Oftentimes you hear this — I’m going to call it a shibboleth — about, you know, privacy gets in the way of health and safety, or privacy gets in the way of this or that. It is just not so. The law is set up in a way to allow sharing of necessary information to protect public health and safety — what’s necessary to do so. That’s kind of, sometimes, where the boundaries of the law lie. And what’s necessary to do that? Well, it’s going to vary from case to case, but for the most part, common sense prevails. People will share the information necessary that’s required to ensure all of us live safely in the present epidemic that we’re in, and those mechanisms are there.

I should also mention, just to come back to the question about the stratas, that we actually have frequently asked questions guidance on stratas, which I think a lot of people have found helpful. We get a lot of questions. If any of you have constituents that have questions or concerns about this, please feel free just to call us directly, because we field those calls virtually every day and are able to guide strata councils and individuals who may be having issues, as well. So I would encourage that.

J. Routledge (Chair): Thank you so much.

Any other questions?

Okay. It looks like you’ve satisfied all our questions. With that, I would thank you for presenting your case and engaging with us. I guess we can wrap it up at this point.

M. McEvoy: Thank you very much, Chair. It’s been my great pleasure to meet with you this morning, and I look forward to many more presentations.

J. Routledge (Chair): Okay. Shall we take a five-minute break? That means that Hansard can take a break too.

We’ll reconvene at ten.

The committee recessed from 9:53 a.m. to 10:01 a.m.

[J. Routledge in the chair.]

J. Routledge (Chair): Welcome, Commissioner. This is your opportunity to make your case for your plan for the next year and your budget for the next year. Over to you.

OFFICE OF THE MERIT COMMISSIONER

M. Baird: I want to begin by acknowledging that I’m speaking to you today from the territories of the Coast Salish peoples, including the Tsleil-Waututh, Squamish and Musqueam nations.

I have with me David Van Swieten, who I understand was introduced to you by my fellow independent officer Michael McEvoy in the preceding presentation.

I’m pleased to have this opportunity to meet with you this morning to tell you about the important work of our office and to address our budget request. As you will have seen from our submission, our budget request is very modest: an increase in operating funding of $12,000 and $15,000 of capital funding for fiscal 2021-22.

In 2022-23, there is a projected temporary increase of both operating funding, in the amount of $299,000, and capital funding, in the amount of $196,000. This is all for the replacement of the case-tracker system, the database system used by our office, as outlined in the joint submission from the four offices who participate in corporate shared services.

By way of background, I’ve just completed the first year of my appointment as Merit Commissioner, and while my first year was not what any of us would have envisioned in mid-January 2020 when I started, it has been and continues to be an honour and a privilege to serve in this position and to do this work.

I’ll start with a very short historical perspective on merit-based hiring. The application of the principle of merit in the B.C. public service has a long and rich history. In 1908, the first legislation was introduced that set merit as a requirement for entry into the B.C. public service. In that year, for the first time, candidates had to pass a competitive exam and provide a certificate of good health and character.

[10:05 a.m.]

Between 1908 and 2006, there was a range of oversight in hiring processes through a central human resources agency and an administrative tribunal. Then in 2006, the Legislature appointed the first Merit Commissioner for B.C. The appointment of a merit commissioner in 2006 as an officer of the Legislature to provide independent oversight was recognition that merit-based hiring is an important and integral part of building a qualified and professional public service, sustaining an engaged and productive workforce, demonstrating credible leadership and, importantly, maintaining public trust.

As you know, part of my mandate is to uphold fair hiring in the B.C. public service by providing independent oversight of appointments to and within the public service to ensure they are merit-based. The public service defines my responsibilities: to monitor the application of merit by conducting random audits of appointments; to provide a review of the application of merit as the final step in the staffing review process; in accordance with an April 2018 amendment to the Public Service Act, to conduct reviews of processes related to just-cause dismissals from the British Columbia public service; and to report annually to the Legislative Assembly on these responsibilities.

To fulfil this mandate, the Office of the Merit Commissioner operates with a small, dedicated staff consisting of four full-time and two part-time employees. The position of Merit Commissioner is a part-time appointment to a maximum of half-time. I supplement this small workforce by hiring auditors on a contract basis when we are engaging in our annual audit activity. In addition, I engage professional advisers, as required, also on a contract basis.

Now, what I’d like to do this morning is to review briefly the results of our work, go over our service plan and priorities for the year and review our budget requirements to address those priorities. For context, as of December 25, 2020, there were approximately 39,000 employees in the British Columbia public service. To November 30, 2020, there were 7,300 appointments which were subject to our overview and oversight. We take random samples of these appointments every quarter to audit a sufficient number to allow us to generalize the results of those audits across the public service.

In 2019-20, this meant that we audited 267 appointments from organizations across the public service. The findings from this audit process, which can be extrapolated to all appointments of a similar type made throughout the B.C. public service, showed that the majority of appointments were based on competitions which are merit-based. Having said this, a large number of errors, some of which resulted in appointments which were not based on merit, were found. These findings are consistent with the previous year.

While these are generally positive findings, there were weaknesses in the hiring process that were identified. The short-listing category of the hiring process generated the greatest number of appointments with errors, mostly due to decisions to change, lower or waive mandatory qualifications or requirements. The most frequent error identified in the hiring process involved assessment tools and standards, specifically a lack of substantive marking criteria and an over-reliance on generic marking scales. The errors with the most serious impacts arose from judgment and administrative mistakes.

Finally, we found that the large majority of individuals appointed were qualified for the position to which they were appointed. In five cases, we found either insufficient evidence to determine the individual was qualified or that the individual did not have or pass a mandatory requirement. There were no appointments for which patronage was found.

Turning now to the second main line of business of our office, which is to conduct the final review of staffing decisions at the request of unsuccessful employee applicants. In the last fiscal year, we received 22 requests for a review. Of the reviews conducted, I issued a reconsideration direction on two appointments.

[10:10 a.m.]

The most common ground for review was related to shortlisting, interviewing and testing stages of the competition, including methods of assessment, criteria used to assess candidates and some administrative issues. In addition, more requesters raised issues related to bias in the hiring process from a procedural perspective than in the previous year.

To date this year, 2020-21, we have received nine staffing review requests. My office tells me that there was an additional one received just this morning. There is no way of predicting the number of requests that may be received in a year, and it is not possible to attribute what appears to be a decrease to any particular cause.

I’m also pleased to advise that the office has undertaken a special study of eligibility lists, the results of which are targeted to be reported by March 2021. Eligibility lists are created at the end of the competitive process and are time-limited lists of candidates who are considered qualified and ready to be appointed for future job opportunities with similar qualifications and accountabilities.

The study was undertaken based on observations by our office of the large number of eligibility lists being created, as well as the observation of a number of recurring issues associated with their creation and use that had the potential to compromise or create a potential risk to merit-based hiring. For example, when the order of the list isn’t observed, an individual my be disadvantaged by not receiving an offer when they should have.

To summarize, then, our office reviews the state of hiring within the British Columbia public service through random audits, staffing reviews and special studies or audits. I share the results of this work with deputy ministers and the heads of organizations for their consideration and direction to their staff about improving hiring practices. These results are also provided to the head of the B.C. Public Service Agency, which is the organization responsible for hiring policy and providing advice and training for possible changes to policy and direction.

My office has noted improvements in hiring over the years connected to the office’s observations and recommendations. The agency head has responded favourably to our recommendations and reiterated their support for striving for merit-based appointments.

Generally, with respect to my role of the oversight of hiring, I consider the state of merit-based hiring to be sound in the British Columbia public service. Over this first year in office, I have observed that while there are errors made and opportunities for improvement, there is significant effort and thought brought to the hiring processes.

I’d like to say a few words about the status of our review of dismissal process reviews. In April 2018, my mandate was changed to include responsibility for the oversight of processes related to eligible just cause dismissals in the public service.

To clarify, my responsibility is not to review dismissals that have occurred to determine if they were justified or supportable, but rather to conduct an after-the-fact review of the processes and procedures followed in the dismissal processes to ensure that they were in keeping with government practice, procedures and standards.

The Public Service Act establishes that for a dismissal practice to be eligible for a review by me, all avenues of redress or recourse, such as arbitration or litigation, must be expired or exhausted. Where there has been no challenge to a just cause dismissal, it will be eligible for review after 12 months. Where an employee does challenge the dismissal, the process would not be subject to my review until six months after all challenge proceedings were completed.

In my 2019-20 annual report released in May 2020, I describe the steps taken by the office to develop a process to ensure that comprehensive and consistent reviews of these dismissals were undertaken. In developing this process, it was determined that a proper review required access to legal information to determine if appropriate legal advice had been obtained prior to the dismissal.

A draft protocol was completed in March 2020, which enabled a review of the first three dismissal cases received in our office.

[10:15 a.m.]

That protocol has now been extended to permit the review by our office of further cases while the protocol is finalized. The expectation is that finalization will occur in the near future. In the meantime, the work of the office in reviewing these dismissal process files is continuing.

The office has currently received 17 completed files for review. While the time to finalize a protocol has been longer than anticipated, the work of file review is now proceeding in an orderly way. I anticipate reporting on all of the files presently in our office in our May 2021 annual report.

Turning to the budget request for fiscal 2021-22. In 2019-20, the office was able to fulfil its mandate within its budget allocation. In that year, the office commenced the review of just cause dismissals. Review of these files has continued in 2020 and is ongoing.

As a result of this experience, our office has found that it has been able to internally manage the additional work related to this responsibility by increasing the hours of part-time staff and with the use of contracted resources. As we did not require the funding for the additional position identified in the last budget submission, we will be reporting a budget surplus in the 2020-21 fiscal year and have advised provincial treasury that these funds can be used elsewhere. We will formally report on the final numbers for the current fiscal year in the fall budget with our next budget submission.

The fact that we are managing the dismissal process reviews without the addition of extra staff has also resulted in a net decrease in $29,000 in our 2021-22 budget request when offset with increases for inflation and the additional hours for the part-time staff.

The other factors included in the $12,000 operating budget request are pretty much evenly split between case-tracker replacement costs and inflation costs related to the items shown on the proposed operating budget, by STOB, at page 4 of the budget submission. The $15,000 budget request for capital expenditures in 2021-22 is entirely related to the case-tracker replacement project. Similarly, the increases in fiscal 2022-23 are driven by the case-tracker replacement initiative, with those costs reducing to what could be described as normal levels in fiscal 2023-24.

The CTS, case-tracker system, replacement project is a major undertaking to replace a software system built in the early 1990s. I’ll be joined by my three colleagues to discuss this joint submission at 1 p.m. today. In terms of the project’s impact on my office for the next few years, these are detailed in table 5 of our submission. If you have any specific questions for me, I’d be happy to address them. Additional information will be provided this afternoon at one o’clock.

This last year has highlighted the need for a skilled, professional public service capable of delivering essential government services in any circumstances, and I’m proud of how the work of my office contributes to ensuring that appointments to the British Columbia public service are based on merit. Again, I want to thank you for this opportunity to meet with you, and I’m pleased to answer any questions.

J. Routledge (Chair): Thank you, Commissioner Baird. I was remiss earlier in not introducing you to the committee members. I’ll do that now, and I’ll just do it in the order in which I see them on the screen. I confess I don’t remember everyone’s constituency. So maybe when they ask a question, they can mention that. The committee is made up of Pam Alexis; Megan Dykeman; Ben Stewart, who is the Deputy Chair; Greg Kyllo; Lorne Doerkson; Mike Starchuck; Harwinder Sandhu; and Grace Lore.

I’ll open it up for questions. We sometimes take a moment to kind of get into the swing of it.

M. Baird: I understand.

[10:20 a.m.]

P. Alexis: Thank you. A very thorough presentation. I just want to go back to a comment that you made with respect to comparing year over year and the hirings and how…. I expect, through different practices, that we’ve improved on the merit-based hirings. If you could elaborate a little bit about that.

Your office…. For example, you gave us statistics of last year’s sampling of 267 and on and on, and you said only five cases where skill may have been in question were discovered. How would that have compared with, say, ten years ago? What has changed? I know you say you can’t absolutely say for sure, but can you just give me a little bit of history and context around that? I’m sorry if this is maybe a bigger question. Anyway, whatever you can supply.

M. Baird: The results of last year are comparable for the year before. I’m not able to give you very much insight about ten years ago. The results vary slightly from year to year, but certainly, from my review of previous years, there aren’t wild swings in the annual findings. For example, in the last merit performance audit, we found that 50, 57….

I’ll give you some more statistics, but perhaps by going over them again, it will help clarify. We found that 57 percent of the appointments were merit-based. We found that 37 percent were merit, but there were some exceptions. There was an issue with respect to design or application within the hiring process, and we found that 6 percent were merit not applied. So there were issues, such that we could determine, that had a negative impact on the appointment process.

Yes, you’re right. There were five that were either not qualified or we weren’t able to tell whether they were qualified or not. I think it’s fair to say there’s some consistency over the years in these findings.

I don’t know if that’s an answer to your question or if you want me to talk about why that is.

P. Alexis: No. The fact that you’ve said that there’s consistency year over year helps me understand. Obviously, there are some very, very good procedures in place that make the numbers so low, and that’s a good thing.

I think I’m satisfied, but I’d love to hear a little bit more about what changed that, over time, we get to these low numbers, which is great. That’s all. But that’s fine. You don’t have to answer that right now — that’s fine — if there are other people.

M. Baird: You know what? I’d like to say something. I think it is a good thing, and I think it is as a result of the consistency in our reporting back our findings to those responsible for hiring and those findings being taken seriously.

P. Alexis: Thank you so much for that. And apologies. Abbotsford-Mission is my riding.

M. Baird: Thank you very much.

J. Routledge (Chair): Thank you to both of you.

Next on the list is MLA Kyllo.

G. Kyllo: Commissioner Baird, my name is Greg Kyllo, MLA for Shuswap. Thank you very much for your presentation.

I’ve got a couple of questions. One is just: what is the consistency in place in the public service as far as the review? If an individual feels that they have been overlooked for a particular job…. I think you had indicated that before you can actually go in and have a look a particular case, they have to absolve themselves of any other remedies that might be available.

[10:25 a.m.]

Is there consistency across the public service as far as what that review or internal review process looks like, and is there opportunity for appeal? I’m wondering if you could paint for us just a bit of a picture of what the internal, I guess, review process is within the public service before your office would have an opportunity to actually start an investigation.

M. Baird: I think what you’re asking me about are the staffing reviews and not the dismissal process reviews. Let me talk to you a little bit about the staffing reviews.

Staffing reviews come to us after there have already been two levels of review: a review by the hiring manager with the unsuccessful employee and then an inquiry by the deputy minister. Each of those has a time limit, but it’s a short time limit. Those occur…. I might not have this exactly right. Each one of those has about a five- or ten-day time limit, and then there’s also a time limit by which they have to come to me. I am the third step in that review process for a person who has taken part in a competition and has been an employee who has taken part in a competition and has been unsuccessful. That comes to me really quite rapidly.

With respect to those — those are the ones where I said that there were 22 last year, and there are now nine so far this year — I am the final review. So there is no legislative appeal process for those. In those, I either uphold the hiring decision or I direct a reconsideration. Those move really very quickly.

G. Kyllo: Okay, great. In the case of if your office does recommend a reconsideration, what does that process look like? If indeed the public service has already extended an employment contract or promotion to another applicant, what kind of, I guess, basis…? Or, I guess, what are the ramifications of a review should the review indicate that something untoward was happening? Do they open it back up again? What does that look like, and what are the potential fiscal costs to the public service?

M. Baird: As a result of the process, in almost all cases, the position is held in abeyance, held open, while my review is undertaken. My service model for responding to these reviews is a maximum of 30 days. If a reconsideration is directed, it goes back to the deputy minister, who determines the process that they will use for that reconsideration. My experience has been that it’s a thorough process, and it’s a thoughtful process and it’s a meaningful process.

Now, having said that, the results of that process are not reported back to me. Once I have ordered the reconsideration, that’s essentially the end of my responsibility.

G. Kyllo: Okay. Well, thank you very much for that.

Then, in the case of a termination, I’m assuming that’s quite the longer, more lengthy period. I guess a question to you would be: do you see any value in the opportunity for your office to participate, in the instance of a termination, sooner rather than waiting until after all other avenues have been exhausted before having a look?

M. Baird: Based on what my mandate is, which is not to determine if it was a proper, just cause dismissal but rather to look at the process collectively to determine if just cause dismissals from the public service are being done in accordance with standards, procedures and practices — in other words, the process is a good one — I think that the timeline is acceptable.

[10:30 a.m.]

It makes sense for all of the other areas of recourse to run their course and not to have multiple things going on at the same time.

G. Kyllo: Then just one last question. In the case of terminations, does your office only get involved and review those terminations that are actually brought to your attention for where there are cases of subsequent concerns, or do you have a look at all instances of just cause terminations?

M. Baird: Well, all cases are brought to my attention. The legislation provides that all cases will be brought to my attention, and there’s a process established for that. It’s up to me how many of those cases I will look at, but to date, we have chosen to look at all cases. In the foreseeable future, I anticipate that that will continue to be our procedure — that we will look at them all. At the moment, as I said to you, there have been 17 brought to our attention, and we will be reporting out on all of those in May.

G. Kyllo: Great. Thank you very much. I appreciate it.

J. Routledge (Chair): Thank you to both of you.

We do have a bit of a speakers list. I’ll just give you the order so you know when you’re coming up: Grace, Lorne, Ben and Harwinder.

Over to you, MLA Lore.

G. Lore: I’m Grace Lore. I’m the MLA for Victoria–​Beacon Hill.

I just had a question about the travel line. I notice there’s not a difference between this year’s travel budget and last year’s travel budget. Just wondering whether there were any plans to change ways of engaging or travelling, given that we’re not doing much of the travelling, or whether that was just kind of built-in — maybe the optimism that we all hold that we’ll get back to doing work that way.

M. Baird: Yes, I think the latter is probably the case. I’m not an accountant, but Mr. Van Swieten will tell me if I’m off base here. I think that at the time the budget was put together, there was some optimism that there would be travel again and a sense that it’s preferable to have it in the budget and not to use it if it’s unnecessary, given that it’s a relatively small amount.

I will be doing some travel, but certainly, I do not anticipate that the full $17,000 allocated will be used this year.

L. Doerkson: Hi there. How does a file a start? Is it complaint-driven, or do you simply review all files, which would seem to be too many? And then can it be challenged by someone else that may have been an applicant to a position?

M. Baird: I think what you’re referring to are the staffing reviews, where there has been an unsuccessful employee candidate. That person, after having gone through the first two stages, will then contact my office asking for a review. So staffing reviews are driven by the unsuccessful candidate, and they will contact my office, who will start the process, and the unsuccessful candidate will provide to us the grounds for the review. We open a file, and then the investigative stage has started.

J. Routledge (Chair): Shall we move on to the next question, Lorne?

M. Baird: Did that answer your question, Mr. Doerkson?

L. Doerkson: It did, actually, and I didn’t have another.

J. Routledge (Chair): Next question is from Deputy Chair Stewart.

[10:35 a.m.]

B. Stewart (Deputy Chair): Thanks very much for your presentation today. It’s been insightful and interesting. It actually raises many questions.

I guess the first thing is the question about merit. What is the baseline that somebody like yourself and your office looks at in terms of the position, whether the hiring has been done on the principles of the goal of trying to find the right person with merit that is fitting in that role? Is it something that you look at independently, or is it something that’s provided to you by the Public Service Agency?

M. Baird: Well, we certainly look at it independently, because that’s the most important part of being an independent overseer of these things. I think the best I can say is that it’s a process. It arises primarily looking at merit, and having to deal with staffing reviews as well, through the audit process.

That’s a process by which we audit, quarterly, approximately 70 files from across the public service. We have standards for the auditors that have been set. The issue of what constitutes merit itself is defined in the legislation, in the Public Service Act. What the auditors do is a very thorough review of every aspect of the hiring process. They’re mindful of the policies and practices of the public service, which have been developed and refined throughout the years. Then they apply those standards to what happened in each individual case to determine whether or not merit was applied and also to see if there were identifiable errors in the process itself.

B. Stewart (Deputy Chair): Thanks very much. So I go to your point that you made that eligibility lists were being created. I’m assuming that’s either within the ministries or the PSA. Those eligibility lists — what’s the basis of those lists? You mentioned that you had some concern. Could you tell us what the concern is? Is there something wrong with that, or is it just the way that they’re developed?

M. Baird: What the concerns actually are…. I don’t want to get ahead of our reporting out, which will be in May. The results will be reported in May. But the office, in doing its work, determined that there was a noticeable increase in eligibility lists being used as a hiring tool and identified some concerns that may or may not have been borne out about these lists, including possible risk to merit-based hiring based on errors within the process by which the lists themselves were created.

It was determined that that was something we should have a closer look at. We have the authority to have special studies, so that’s what we’ve done. There were concerns, as part of the audit process, that emerged, that our staff identified as being reasons for having just a closer look at this sort of hiring tool.

B. Stewart (Deputy Chair): Just to continue, Commissioner, with the level of looking at the spectrum of people that you’re looking at…. You said that you do about 70 files and random audits per year.

M. Baird: Quarterly.

B. Stewart (Deputy Chair): Quarterly. Thank you. I’m just wondering: what’s the level that you are able to look at in terms of merit? Do you look within the ministry’s directors, ADMs, deputy ministers? What are the limits that you’re looking to?

[10:40 a.m.]

M. Baird: We look at the people who are hired under the Public Service Act. If it’s an order-in-council appointment, we would not be looking at that.

B. Stewart (Deputy Chair): I see. Okay.

J. Routledge (Chair): Our next question is from MLA Sandhu.

H. Sandhu: Commissioner Baird, I am Harwinder Sandhu, from Vernon-Monashee. A great presentation. It explained a lot.

I have a quick question. When you talked about shortlisted candidates, do we have a scoring or documented criteria for the candidates who are not shortlisted? It’s just in case they come back to you and express concerns that they think it wasn’t fair that they weren’t shortlisted. How do we document that?

M. Baird: Shortlisting is one of the areas that can be a ground for review, because if you’re talking about a candidate coming back to me, you’re talking about a staffing review. Yes, there are guides for marking and for shortlisting, and there are criteria. These are set by the hiring managers. That’s really where they’re best set — the criteria for relative shortlisting of candidates.

That’s not something where we would interfere with the criteria that are set, unless it could be demonstrated that it resulted in some unfairness. It’s because that’s what we’re looking to see. We’re looking to see if there’s an unfairness in the process. If there were a complaint about how shortlisting had been carried out in any particular competition, that’s something that would be carefully looked at as part of our staffing review.

H. Sandhu: That’s good to know. Thank you.

Just a quick follow-up. In that case, do those candidates often express their concern to the hiring team or hiring manager, or can they come to you if they feel that they were not heard?

M. Baird: The legislation requires that they go through two steps before they get to me. First, they have to go to their hiring manager and obtain feedback from their hiring manager. Then they have to go to the deputy minister, who conducts an inquiry. If they still have a concern, then they request a staffing review from me.

H. Sandhu: Wonderful. Thank you.

J. Routledge (Chair): Thank you to both of you.

Now I have a couple of questions. I don’t see any other hands. I see we’re coming towards the end of our time together. I’ll ask my questions, and we’ll see how far we get with it. I’ll ask them all at once.

The first question relates to the comment about the $12,000 operating funding request, including $9,000 in net savings due to contract work. I guess my question, if you could tell us more about that, is: was this a deliberate decision to save money by contracting out work, as opposed to hiring staff? That’s one question.

My other question relates to…. I guess there are three questions. Is your mandate to ensure that the most meritorious candidate is offered the job or that they are meritorious? I’m asking that as it relates to, for example, employment equity and our changing views, as a society, about what constitutes merit.

[10:45 a.m.]

Then finally, with regard to your role in just cause dismissals, would the results of your reviews be available to be used in an arbitration, for example, and an EI appeal? Of course, if it’s determined that someone has been dismissed for just cause, they are not entitled to EI. Would either party, the employer or the employee, have access to your investigation to make their case?

I’m sorry. That’s a lot of questions.

M. Baird: Let me start at the beginning, with the $12,000 operating request and the $9,000 net savings.

I think the best way to approach this is to say that this is how it evolved. In April 2018, when the responsibility was added to our office, the initial thought was that we may need additional staffing resources to meet that responsibility and that need. That was built into the budget. At that time, we really didn’t know what the timing would be, how many there would be or how they would come, whether we would have 50 a year or 20 a year. So the staffing was requested and was given.

Our experience has been that we can manage this work with the staff we have and by using contracted resources. We now have enough experience with the dismissal process reviews that we have sufficient confidence in that. We don’t need that additional staffing resource anymore. I can’t say that that will always be the case, but certainly, that’s our view for the foreseeable future. We’ll be able to manage it without an additional staff person.

I guess it was a decision, but it evolved as we saw how the cases would be. We started with a brand-new responsibility and not knowing what to expect. We now have some experience with it. So that’s how that came about.

Then your second question had to do with whether we’re, in fact, charged with determining whether the most meritorious candidate gets the job. I think the best I can say to you about that is that our mandate is to determine that merit has been applied. As I said, it’s defined in the act. It says: “Was the person who was appointed qualified by virtue of their education and skills and past work performance and years of continuing service?”

We do not adjudicate in any way on whether the person appointed was the most meritorious. Our level is that they meet the standard of merit, as defined in the act. Hopefully, that answers that question.

J. Routledge (Chair): Yes, absolutely.

M. Baird: I’ll move on to dismissals. As I said, by the time a dismissal gets to our office for review or before we can commence the review, all avenues have to be finished. So in terms of whether….

One more thing. We do not determine whether the just cause dismissal was supportable. We’re not running a parallel determination to, for example, a dismissal lawsuit. We have to wait until everything is completed before it comes to us. The person, therefore, would not be able to use it in an arbitration or in a lawsuit. All of that will be finished before it comes to us.

Also, we’re not making a determination about whether it was supportable or not; we’re looking at the process. Was the process consistent with the practices and standards of the public service?

[10:50 a.m.]

You also asked about employment insurance and whether it could be used there. I must say I don’t really know the answer to that. The report that I make doesn’t identify any particular dismissal, in any event. That’s not my job. Also, there’s some statutory protection for the work that I do. So I can’t give you a definitive answer about that.

J. Routledge (Chair): Okay. All very helpful answers. Thank you so much.

Before we wrap it up and say goodbye to you, does anyone have any other questions, observations at this point?

Okay. Well, thank you, Commissioner Baird. Thanks for your time and your answers.

M. Baird: Thank you very much.

J. Routledge (Chair): Shall we take another five-minute recess? See you in five.

The committee recessed from 10:51 a.m. to 11:01 a.m.

[J. Routledge in the chair.]

J. Routledge (Chair): I’d like to welcome our Conflict of Interest Commissioner, Victoria Gray, and her staff.

As a reminder to anyone who may be listening in on the meeting, we are here today to review the budgets of the statutory officers.

I’ll just take a moment to introduce the committee, and then I’ll turn it over to you, Victoria. Looking at the order on my screen, the committee is composed of Pam Alexis, Deputy Chair Ben Stewart, Megan Dykeman, Lorne Doerkson, Harwinder Sandhu, Mike Starchuk, Greg Kyllo and Grace Lore.

Over to you, Victoria.

OFFICE OF THE CONFLICT
OF INTEREST COMMISSIONER

V. Gray: Good morning, Madam Chair, Mr. Deputy Chair, members of the committee. Thank you for this opportunity to talk to you about the Conflict of Interest Commissioner’s office.

You may have seen on the group that there is Carol Hoyer. She is our office’s executive coordinator, and she is the most familiar with budget matters.

I began serving as commissioner on January 6, 2020, just over one year ago. I’ve had a chance to talk by telephone to a couple of you, but I’ve not yet had a meeting with any of you. The election was called before I had a chance to meet with the three of you who were members of the previous parliament. I look forward to meeting with each of you in person or virtually over the next few months.

First, a quick summary of our role. The conflict-of-interest office is B.C.’s smallest statutory office, but we have an important role. We seek to maintain the integrity of the members and to enhance the public perception of the integrity of the decisions of the Legislature and its various decision-making entities.

Our role is described in the Members’ Conflict of Interest Act, and work focuses on three things. First is helping MLAs to understand the conflict rules and assisting them to comply by giving advice, often in writing and often in short time frames, when issues arise. Second is helping MLAs navigate the financial disclosure requirements of the act. Third is responding to complaints and requests for public opinions. That can come from MLAs or from members of the public. In addition, we’re involved with comparable offices across Canada in coordinating the development of best practices.

The impact of members acting in a conflict of interest on the public perception of the members’ integrity is very significant. If you’ve lived in British Columbia long enough, you’ll recall that the political careers of two Premiers, Premier Vander Zalm and Premier Glen Clark, essentially ended when they were found by my predecessors to have acted in conflicts of interest.

The Members’ Conflict of Interest came into effect about 30 years ago, and since that time, there have been three long-serving permanent commissioners. The first was the late Ted Hughes, for about six years in the early ’90s; then the late Bertie Oliver for about ten years, from 1997 to 2007; and then the late Paul Fraser for about 11 years, from 2008 to 2019. There were some other acting commissioners here and there in between.

[11:05 a.m.]

I’ll turn straightaway to the budget. Our budget remains the smallest of all the statutory officers. Our appropriation for operating expenditures is $734,000 in fiscal year ’20-21, that being the one ending in a couple of months.

We’re requesting a budget of $738,000 for fiscal ’21-22. That’s an increase of less than 1 percent. It reflects a modest cost-of-living increase in salaries. For the two following years, our request is for a similarly modest increase to $743,000 and $753,000. Our budget appropriation for capital expenditures is $25,000 in each of those three fiscal years.

Our most significant budget items are salaries and benefits. I work on 75 percent of a full-time basis. Two of the three staff members are full-time, and one works at 60 percent time, so the staff time is 2.6 FTEs. If you include me, the office has 3.35 FTEs.

The Legislature is our landlord. We work out of the red brick building at 421 Menzies. This location’s convenient for members, at least pre-pandemic. They were able to drop by to deal with financial disclosures and meetings. But we also enjoy the proximity to the Legislative Assembly. Our discretionary expenses remain low in large part because of the reasonable rent we pay.

Our work is driven by complaints and requests for opinions. As such, it’s highly unpredictable what will come in the door and with what degree of urgency. Conducting inquiries and delivering formal public written opinions is very time-consuming but necessary. The public is entitled to know that the Members’ Conflict of Interest Act is understood and applied by MLAs in their work.

I have not yet been required to investigate a complaint and issue a formal public written opinion. I know that such investigations and opinions call upon the office’s resources in a significant way. I was a trial lawyer for nearly 20 years and then a judge for 16 years, so I know what kind of work goes into those opinions and investigations.

Perhaps our most important work is the upstream work, where we try to assist to prevent conflicts from arising or manage the unavoidable conflicts. We do that by providing information, guidance and advice in a timely way.

The caveat, which I understand our office routinely applies to its budget request, is that we may need to come back to this committee if we need additional resources in order to deal with an unexpectedly high volume of complaints requiring inquiries and opinions or if the office is the subject of another application for judicial review. Subject to that caveat, I do not anticipate any material changes to our budget.

As a result of the COVID pandemic, our staff have been working primarily remotely from home with occasional office visits, sometimes brief, sometimes not-so-brief. We have not incurred any significant additional expense as a result, although we did discover the limitations of our technology, and we upgraded our computers. We did that within our budget.

The annual meetings between me and each MLA commenced in the summer of 2020, but the election was called before I was able to meet with all 87 MLAs. I met with 36 MLAs, ten in person and 26 virtually. Almost all of the MLAs have recently submitted their financial disclosure forms, which were due about ten days ago.

My meetings with each MLA will start soon. I anticipate that as a result of the COVID pandemic, most of the meetings will be virtual ones. We got some practice with the virtual meetings in the summer, and I hope that all of the upcoming meetings will go smoothly. We don’t anticipate any additional expense for the virtual meetings.

Ordinarily, I and other members of my office would travel to national and international conferences. This year they proceeded virtually rather than in person, and as a result, our travel expenses were less than budgeted. We incurred modest expenses for a table and chair and keyboards to make the office ergonomically appropriate for everyone, but that cost was well within our budget.

The primary change for the office has been my appointment as commissioner. I am delighted to work with the dedicated, professional and long-serving staff of the office, who have made me feel very welcome and have assisted me greatly in learning my role.

I believe you will have received my 2019 annual report. It outlines the difficult year of 2019 for the office, during which Commissioner Paul Fraser became ill and passed away. The office was without a commissioner for three months, and then the Hon. Lynn Smith, QC, was acting commissioner for six months.

[11:10 a.m.]

The workload in 2019 was comparable to 2018. The number of requests for information and advice in 2018 was nearly 200, and in 2019, it was almost 210. That’s an average of about 205. In 2020, there were about 5 percent fewer requests than that average, with 192 requests for information and advice.

I attribute that slight reduction to two things: the pandemic and the election. One effect of the pandemic has been fewer events and speaking engagements for MLAs, with a corresponding reduction in requests for opinions about related conflicts and gifts and sponsored travel.

During the election period, the Legislature was dissolved, so there were no MLAs to seek advice. There were former members of cabinet who sought advice, and members of the public still contacted us, but we did have fewer than usual inquiries. We used the opportunity of the election period to update most of our bulletins on items like post–political office considerations and letters of reference.

In 2019, acting commissioner Lynn Smith completed the investigation and publicly released the opinion requested by MLA Kahlon, now Minister Kahlon, regarding his legislative committee work concerning ride-sharing, in light of his father’s ownership of a taxi. This issue was the subject of media attention, and the investigation and public opinion reflected the public concern. Also, in late 2019, acting commissioner Lynn Smith completed the annual meetings with all 87 MLAs to discuss their financial disclosure.

So far, I have not been required to investigate a complaint or conduct an inquiry. There have been some concerns raised by the public which did not meet the threshold for me to conduct an investigation. Historically there’s usually been about one public investigation or inquiry per year. Of course, I do not wish an investigation on any member. As a former lawyer and judge, I’m kind of keen to do it, but I don’t want any member to have to go through that, on the other hand.

Our office has worked collaboratively with other offices and agencies on matters of shared interest. For example, we worked with the office of the lobbyists registrar to coordinate our brochure on MLAs accepting gifts and benefits with their brochure about lobbyists reporting on gifts they provide to MLAs. We work with the Clerk’s office and the Information and Privacy Commissioner’s office on issues leading to the online posting of members’ public disclosure statements. We are participating in the statutory officers committee on the implementation of DRIPA, the Declaration on the Rights of Indigenous Peoples Act. We made presentations to interested MLAs and to incoming legislative interns.

We anticipate that at some point in the future, we will be consulting extensively with the Ministry of Attorney General and a legislative committee to update the Members’ Conflict of Interest Act, either in accordance with the legislative review in 2012 or for a new legislative review.

Our continuing work includes the timely responses to requests from members for opinions and assistance and from the public about possible complaints. I cannot discuss the opinions given to members in any detail because they’re confidential to members. Our practice is not to publicize inquiries from the public unless they lead to an inquiry and public opinion.

Our other continuing work is managing the financial disclosure for members. That includes preparing the public disclosure statements, which will be posted on line through the Clerk’s office. For those of you on the committee who have not been through the process before, our office reports most of the information from the form 1 financial disclosure on the public disclosure statements. But some of it is omitted, such as your residential address.

Our priorities and goals remain working to preserve the integrity of the members of the Legislature and the public perception of them and our provincial government through providing timely confidential advice to members and timely and thorough responses to complaints.

[11:15 a.m.]

It’s been my honour to serve since January 6, 2020, as commissioner. I look forward to meeting with each of you over the next few months, either masked and in person or virtually and maskless. Thank you for your attention, and I’ll try to answer any questions you may have, with Carol’s assistance.

M. Dykeman: Thank you very much for the really thorough report that you just provided now and in writing. As I was looking through it, one of the questions that came to mind…. I understand that this is impossible to predict, but I’m wondering if there’s any sort of historical perspective in relation to risk, the ability to come back to the committee should there be an increase in investigations.

Has that happened historically? I assume that would be by way of an increase in professional services under STOB 60. I’m just wondering what that sort of looks like in understanding the risk that happens when something is complaint-driven. Thank you for any information you can provide in advance.

V. Gray: I think way back…. Now, Carol may be able to assist here. I think when Ted Hughes was commissioner, the Bill Vander Zalm inquiry, he retained outside lawyers. It was much like a trial. I expect that he, at that point, went back to the committee. But in more recent years, I don’t think that has happened.

Carol, do you know?

C. Hoyer: I don’t recall anything. Referring to the Ted Hughes event, I don’t know about that one either. I don’t know if they would have gone over budget, because I would think they would have already budgeted the possibility in. But it could be there. I don’t know how much they would have gone over. And the likelihood of that happening again, I don’t know. It’s really hard to….

V. Gray: It kind of depends on the nature of the complaint that was being investigated. For example, the investigation complaint of the request from now Minister Kahlon was handled without any extra budgetary requirement. It was one that was mostly driven by looking at documents and interviewing people, and it was something that was able to be handled by acting commissioner Lynn Smith and our legal officer Alyne Mochan without the need to hire other people.

For many of these conflict issues, there’s no real dispute about the facts. So it’s a matter of collecting basic factual information and analyzing it. I wouldn’t expect to have to hire outside council for that, to handle that kind of inquiry.

The judicial review. I can’t think right now what the decision was, but there was a decision made by the committee, and then Democracy Watch wanted the court to intervene. It went to the Court of Appeal, who ended up saying essentially that it can’t go to the court for judicial review, that the commissioner’s role is as an officer of the Legislative Assembly and it’s not something that’s supervised by the court.

I would hope that will stop any further judicial reviews. But you know, if there were a judicial review, I’m no longer a lawyer. We’d have to hire someone to appear in court.

At this point, I think it’s very low-risk that we would be coming down and asking for more money.

M. Dykeman: Wonderful. Thank you for the background on that. It’s good to understand the frequency of something like that. I appreciate it.

G. Kyllo: Thank you very much for your presentation, Commissioner Gray. I just want to say that your 1 percent request for an increase in budget is exemplary. I think that the deliberations of this committee would be much easier if everybody was only coming looking for a 1 percent increase.

I just have to say that I certainly appreciate the professionalism of your office and your assistance in helping us have any questions answered before they potentially become an issue. I just really appreciate the work of your office.

V. Gray: Thank you.

J. Routledge (Chair): Are there any other questions? I’m not seeing any hands raised or anyone indicating in chat that they want to ask a question.

Okay. It looks like you’ve anticipated all of our questions.

V. Gray: All right. Well, I look forward to meeting you all. Good luck with all your meetings.

J. Routledge (Chair): Okay. Thanks for your time.

If the committee could just stay on for a moment. We’ll adjourn until after lunch, and then there were some questions that people had.

If someone could move the motion to adjourn. Pam and Megan.

Motion approved.

The committee adjourned at 11:20 a.m.