February 1, 2018
House of Assembly Management Commission
No. 64
The
Management Commission met at 9:30 a.m. in the House of Assembly.
MR. SPEAKER (Warr):
Good morning, and welcome
to the House of Assembly Management Commission.
I'm
Brian Warr, Deputy Speaker for the House of Assembly, and I'll be substituting
in for Speaker Trimper today who is on government business out of the province.
It is certainly a privilege to chair the Management Commission meetings this
morning.
The
first thing we'd like to do is go around the table and have each Member, along
with the House of Assembly staff, introduce themselves.
MR. P. DAVIS:
Thank you, Mr. Speaker.
Paul
Davis, MHA for Topsail – Paradise.
MR. HUTCHINGS:
Keith Hutchings, MHA,
District of Ferryland.
MS. MICHAEL:
Lorraine Michael, MHA, St.
John's East – Quidi Vidi.
MR. BROWNE:
Mark Browne, MHA, Placentia
West – Bellevue.
MS. RUSSELL:
Bobbi Russell, Clerk's Office.
CLERK (Barnes):
Sandra Barnes, Clerk.
MR. SPEAKER:
We have two Members that
couldn't be here this morning. They're on the intercom and I'd like for them to
introduce themselves as well.
MS. COADY:
Good morning, it's Siobhan
Coady, St. John's – West.
MR. A. PARSONS:
Andrew Parsons, Burgeo – La
Poile.
MR. SPEAKER:
Thank you.
Because
we have Members this morning, again, who are coming via teleconference, I would
like to remind Members that if you are making a comment or statement this
morning, if you'd speak up a little higher than normal so our friends on the
telephone can hear us as well.
The
first thing we'd like to do is entertain a motion to approve the minutes for
December 6, 2017. I'd certainly like to ask all Members if there are any errors
or omissions.
MS. MICHAEL:
Moved.
MR. BROWNE:
Seconded.
MR. SPEAKER:
It's been moved by Ms.
Michael and seconded by Mr. Browne.
Any
further discussion?
All
those in favour?
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
Opposed?
Motion
carried.
On
motion, minutes adopted as circulated.
MR. SPEAKER:
Agenda item 2 is a request
for appeal for the Member for Lake Melville. The Member for Lake Melville is
appealing the denial of payment by Corporate and Members' Services division of
expenses incurred by the Member.
The
expenses were rejected because they did not comply with the provisions of
subsection 7(6) of the Members' Rules
that expenses must be submitted for reimbursement within 60 days of being
incurred. The expenses submitted totalled $979.32. They are permitted under the
Rules, but could not be approved for payment as per the provisions of subsection
7(6). The expenditures include airfare and meals for the House-in-session
travel.
Any
discussion?
MR. P. DAVIS:
I'll move it.
MS. MICHAEL:
Seconded.
MR. SPEAKER:
It's been moved by Mr. Davis
and seconded by Ms. Michael that they be accepted.
Any
further discussion?
All
those in favour?
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
Opposed?
Motion
carried.
Item 3
is the request from the Commission of Inquiry into the Muskrat Falls Project for
the exemption to the Access to Information
and Protection of Privacy Act, 2015. On January 24, the Speaker received
correspondence from the Government House Leader requesting that a meeting of the
Management Commission be scheduled to consider a request from the commissioner
of the inquiry into the Muskrat Falls Project, Justice Richard LeBlanc.
In
correspondence to the assistant deputy minister of Justice and Public Safety,
Commissioner LeBlanc requests an exemption for the inquiry from the
Access to Information and Protection of
Privacy Act, 2015, in accordance with section 4 of that act. Further details
are outlined in Briefing Note 2018-002, which also includes the correspondence
from the Government House Leader to the Speaker and from Commissioner LeBlanc to
Justice and Public Safety.
Additional information was also provided by Commissioner LeBlanc in accordance
to the Speaker dated January 30. You all have a copy of that. This
correspondence was distributed to the Commission as an addendum to Briefing Note
2018-002.
I'd
certainly like to take the pleasure of welcoming Ms. Kate O'Brien and Mr. Barry
Learmonth, co-counsel for the Commission of the Inquiry into the Muskrat Falls
Project, who are joining us today to answer any questions that the Management
Commission may have with respect to this request.
I open
the table for discussion.
MR. P. DAVIS:
I believe the meeting was at
the request of Minister Parsons, the Minister of Justice and Public Safety. I
would expect him to introduce the item.
MR. SPEAKER:
Mr. Parsons.
MR. A. PARSONS:
Say that again? The meeting
was at the request of myself.
I wrote
the letter requesting the meeting, yes, because we had a request come in from
the Commission regarding ATIPPA, which I think the only way to address this now
was through a meeting of the Management Commission. Again, perhaps, given the
fact it was the Commission that wrote and requested this exemption, perhaps the
counsel for the Commission can explain why this request is being made.
MR. SPEAKER:
Thank you.
MS. O'BRIEN:
Thank you.
Good
morning. Kate O'Brien speaking, one of the Commission co-counsel, and with me
today is Mr. Learmonth, the other Commission co-counsel.
You
should – and I understand you do have before you a letter from Commissioner
LeBlanc that set out the reasons for this request, and I'll just briefly bring
you through it.
Public
inquiries have three parts; there are three main parts to a public inquiry. The
first part is the investigative stage. That's when we, as the Commission team,
would be gathering evidence, following leads, collecting the documents and
evidence from individual witnesses.
The
second stage would be the public hearing stage. That's where we present the
relevant evidence to the commissioner, primarily at public hearings. That, of
course, is a very public process and the evidence goes before the commissioner
then.
The
final stage is the reporting stage. That would be when the commissioner writes
and then, ultimately, delivers his final report.
The
concern that's brought us here today and the reason for the commissioner's
request really has to do with the investigation stage. So that would be the
first stage that I've spoken about. And outlined in the commissioner's letter of
January 30, he stated three primary reasons for looking at this request. I'll
just quickly go through them.
The
first is the potential impact on our ability to conduct a thorough
investigation. The need to protect the integrity of ongoing investigations is
well recognized, I believe. It certainly is recognized within ATIPPA already.
Investigations of the Royal Newfoundland Constabulary, the Information and
Privacy Commissioner, the Citizens' Representative, as well as other public
bodies are already exempt from ATIPPA disclosure.
Simply
stated, quality investigations cannot be carried out in public, as investigators
really need to have the full freedom to explore avenues of investigation.
The
second concern that Commissioner LeBlanc has raised is on our ability to collect
evidence. We have an enormous task ahead of us. We want to do that task as
thoroughly and efficiently as possible, and to do that we will need the
co-operation of the key players.
The
commissioner has developed rules of procedure, and those rules have within them
a process to deal with privilege claims and other claims that party might make.
The process has, in the first instance, legal counsel for the parties and legal
counsel for the Commission working together to resolve issues.
If we
can't agree, then the procedure sets out that we would go before a judge of the
Supreme Court of Newfoundland and Labrador. However, we don't want to be going
before a judge for every issue. That would take a lot of time, a lot of effort
and, quite simply, that's time and effort we don't have at this stage.
Our
ability to give parties assurances that documents they provide to us do not get
released, other than through the procedures that we developed, we believe is key
to ensuring that we do get their full co-operation.
The
third and final reason the commissioner has set forward in his letter is the
impact on commission resources. Currently, we have two commission co-counsel and
we are expecting to receive millions of documents.
Mr.
Learmonth and I, we represent the public's interest as we sift through these
documents, and we'll do that with a team to support us. What we have to do is go
through all those documents and determine what's relevant in terms of the terms
of reference for the Commission of Inquiry. It is the public's interest in a
full airing of the facts that will guide us.
We can't
do that work with our team as planned and respond to ATIPPA requests, too. It
would just be too much work. So we have estimated that if we do not get an
ATIPPA exemption, we would need four additional full-time staff. I did ask our
chief administrative officer to just give us an idea of what the expense of that
would be, given that it's not just the staff but it's all the equipment and
space and all that that comes with the staff. He gave me an estimate of between
$300,000 and $400,000. That's a really significant amount of money. And, really,
what is the benefit that we'd be getting for that?
Certainly, at the end of our inquiry process, all information that should be
made public will be made public. When we are done our work, all the records of
the Commission would go to the Department of Justice and Public Safety. There
they would be subject to the full ATIPPA scheme; people would be free to make
ATIPPA requests.
In the
meantime, the two bodies that we expect to get the most documents from – those
would be the Government of Newfoundland and Labrador and Nalcor – those are both
public bodies that still throughout the course of the Commission's work remain
under ATIPPA and still subject to ATIPPA requests on a day-to-day basis as they
are now.
In light
of those two things, a lot of the documents still remain accessible during and
then, ultimately, they will all be available to the public pursuant to the
ATIPPA scheme. We really see no loss in transparency. What we're looking for
here is just a matter of timing of when the public can access the fullness of
the records through ATIPPA.
In
conclusion, I just wanted to say we are here working for the public's interest
and a public inquiry is just about one of the best ways to bring transparency
and openness to the decision-making processes of public bodies. The commissioner
is making this request now to ensure that our efforts are not compromised. He
has been entrusted with a task and he wants to perform that to the best of his
abilities.
Thank
you for your time.
MR. LEARMONTH:
Could I …?
MR. SPEAKER:
Yes, go ahead.
Thank
you, Ms. O'Brien.
MR. LEARMONTH:
While I fully endorse the
reasons stated by Ms. O'Brien today and also the letter that was written by the
commissioner, there are a couple of other points I'd like to make. What we're
asking for today is just a temporary or interim ruling on this matter.
Under
section 4 of the legislation, this Commission can recommend to the Lieutenant
Governor in Council that we should be excluded by amending Schedule A of the
ATIPPA legislation. This is just a temporary measure. When this section 4, which
gives you the right to make this recommendation was passed – the Legislature
must have contemplated that there would be situations where an urgent request
such as this would be made and that's why I would suggest to you section 4 was
passed to handle a situation exactly like the one before you today.
In the
fullness of time, this matter, if the exemption is to continue, will have to be
debated fully in the House of Assembly because the exemption, if you see fit to
grant it, could not continue beyond the end of the next sitting of the House of
Assembly. So this is just an interim measure. It's sort of a bridge to a full
and fulsome discussion of the matter, should one be necessary or appropriate in
the House of Assembly. Just a temporary measure.
Once
again, another temporary aspect of this is that in the fullness of time when the
final report is filed, all of our records are going to be made public. So this
is not a request to bury information or conceal or hide information. This is
just a request to postpone the public disclosure of it.
One of
the most compelling reasons why we ask you to consider this request is that, as
Ms. O'Brien has said, we expect to get millions of documents. We have had the
co-operation of the main parties – that's the government and Nalcor – so far. If
we don't get an exemption, it's possible – no one has said this to us, but it's
possible that some, Nalcor or the government, may claim privileged documents and
that would impede our ability to examine the records carefully in order to come
to a proper conclusion on the matter.
So my
main concern – and this is one of the reasons the commissioner and Ms. O'Brien
has touched on – is that I don't think that it's feasible for us to do a full
and thorough investigation unless we get this exemption. I feel very strongly on
that point. The point of the public inquiry is to shine light on what happened
here, and that's our mandate and we consider it a solemn duty to do our very
best to achieve that end. And if we don't get the exemption, our work will be
affected and the final product may be compromised unless an exemption is
granted.
So that
has to do with the product that we hope to arrive at and to give to government
after the Commission's work has been completed.
Now, the
other point is the fact that we will be slowed down if there are ATIPPA requests
because we have millions of documents. Ms. O'Brien has said we may need an extra
budget of $300,000. My personal opinion – I don't have any facts to prove it –
is that's a very low number. That would add extra money to a public process
that's going to cost enough anyway if a proper job is to be done.
So, in
conclusion, I ask you to consider this matter seriously. I respectfully submit
that unless we get this exemption, our ability to do our job in a thorough
manner will be compromised. We will not be able to produce the kind of report
that we want to.
MR. SPEAKER:
Thank you, Mr. Learmonth.
The
Chair has recognized Mr. Hutchings, followed by Ms. Michael.
It's a
little difficult as a Chair this morning because we have two Members that I
cannot see. So I'd ask that both Mr. Parsons and Ms. Coady, if you could chime
in. I guess if you need to speak, or if you want to speak, chime in. We'll try
and fit this in, in the right sequence.
Anyway,
Mr. Hutchings, you have –
MR. HUTCHINGS:
Thank you, Mr. Speaker.
I just
wanted to revert to Ms. O'Brien, when she mentioned the three stages of the
inquiry process. One of them, obviously, is an issue that Judge LeBlanc
identified in his letter related to the investigative stage.
In terms
of the inquiry, obviously, it's vast in regard to three stages: the start, the
beginning, the end, then the final report. But within that context, the
investigative stage wouldn't be all encompassing through that period. I guess
there would be a period within the inquiry where the investigative stage would
do interviews, collection of data. All of that material would be a portion of
that overall inquiry.
Is that
correct, or would you foresee the investigative stage throughout the whole part
of the inquiry. Could you speak to that, please?
MS. O'BRIEN:
Absolutely. Thank you.
Certainly, we are in the investigative stage now. These are loose categories,
obviously, but the investigative stage – we are starting to get documents in
now. We will start to be interviewing witnesses.
The bulk
of the investigative stage is typically done before hearings begin; however, it
does happen where, as the public hearings are going on, more evidence is
produced, more information comes to light. So you can't really say the
investigative stage really stops once the public hearings begin.
As well,
the commissioner is still setting up the structure of the inquiry, but we're
certainly anticipating at this point that it would take place in at least two
phases. One phase would look at the sanctioning issues, and then there would be
a later phase of public hearings that would look at execution. There will be an
in-between period, between at least those two phases where ongoing investigation
would be happening.
So while
I did break it down into three phases, you can't really say one ends and the
other begins. Certainly, we would expect that by the time the public hearings
have all closed – and that might be two and there might even be a third phase,
it hasn't been determined yet. But at that point, we would expect that we'd have
all the information then, and then the commissioner would begin his work of
going through that information and developing his recommendations and findings
for the final report.
MR. HUTCHINGS:
Okay, thank you.
Mr.
Learmonth, you suggested in regard to the ATIPPA in section 4, you referenced
the fact that in 2015, when the ATIPP legislation I think was reviewed and
recommendations made, there was a provision for an exemption. Therefore, this
would be a case, I guess in public inquiries, where knowingly the Commission
would have recognized that this is something that may need to be considered in
the future.
Would
the reverse also be suggested? Is it at that point they didn't think that it
should be carte blanche, that a public inquiry should have immediate exemption
in regard to release of information?
MR. LEARMONTH:
Well, I think that's true. I
mean it's difficult for me to say what the legislator had in their mind but, we
are – this Commission, like all commissions, is a public body as defined in the
legislation.
Yes, the
Legislature, by writing this in the way that they did, there must have been a
presumption that public bodies would be subject to ATIPPA, but there would be
circumstances where they would be excluded. The compelling point in support of
this conclusion is the volume of documents that we anticipate receiving.
I also
point out that this legislative position differs, for example, in the
legislation in Ontario. In Ontario, it's done the opposite way. Here, under
section 4, the public body, which is the Commission here, has to be added to the
list excluding it. In Ontario, the public body is not subject to the legislation
unless it's added. So it goes the opposite way.
I think
it's like that in BC and other places. The result of that is that a public
commission in Ontario is not subject to their equivalent of the ATIPPA
legislation unless it's added to Schedule B, whereas in our legislation it is
subject to it unless there's exclusion in Schedule B. So it's just a different
approach.
I'd like
to emphasize, if I may, that by inserting this section we have to assume it was
put in there for a purpose, and that purpose would be to serve situations such
as this, I submit, where an exemption is appropriate.
MR. SPEAKER:
Before we chime in with Ms.
Michael, I just want to ensure that both Ms. Coady and Mr. Parsons – are you
having any issues with the volume?
MS. COADY:
I'm good, thank you. I also
have it on speakerphone. So I'm good, thank you very much.
MR. SPEAKER:
Minister Parsons?
MR. A. PARSONS:
A little bit more difficult
in hearing Mr. Learmonth and Ms. O'Brien, but I'm getting by.
MR. SPEAKER:
Okay.
Ms.
Michael.
MS. MICHAEL:
Thank you very much, Mr.
Speaker.
I'd like
to pick up on a point being made by Mr. Learmonth, and it's not to get into
argumentative discussions or anything, but just another aspect to what you're
saying with regard to the public body.
First of
all, Schedule B, which at the moment has nothing listed under it – this is the
first time something would be listed under Schedule B of the ATIPPA – has to
deal with public body, and there's no doubt that the inquiry is a public body. I
think under ATIPPA it's clear that it is a public body. But I still think there
is the duty and the responsibility to determine whether a public body, at any
given time, should go on it.
It's not
just it's a public body, therefore it should go on it. I think we have to look
at, well, what public body is it and what is it dealing with, et cetera. I think
that's what we have to be determining. I think that's my responsibility here. So
just to put that out.
AN HON. MEMBER:
I agree with that.
MS. MICHAEL:
Oh, great, thank you very
much.
But I do
have a question of clarification with regard to the point that Ms. O'Brien first
made. That has to do with the records being made public. In Mr. LeBlanc's letter
he talks about the record – everything with regard to the public inquiry – and
we know this – will go to most likely the Department of Justice.
To me,
that's not making the records public. So do we have two steps here? Is it that
with the report of the inquiry everything will be made public and, of course, as
happens with all inquiries, everything will then move on to a department because
going to a department is not going to be automatically making it public? I
believe that if it goes to a department, then ATIPP is going to have to be
brought into play.
There's
a difference to me in those two things, so I need clarification on that.
MR. SPEAKER:
Ms. O'Brien.
MS. O'BRIEN:
Yes, okay. Thank you.
You are
correct. In the course of carrying out the public inquiry, certain exhibits are
entered into evidence and they become public exhibits and they will be published
on the Commission's website.
There is
still ability under the Commission's rules of procedure, as is usual for all
commissions that I'm aware of, where certain exhibits are confidential exhibits.
So there is some information – there's a test that the commissioner has to meet
before making a decision on whether something is a confidential exhibit, but
generally most exhibits become public exhibits and they go all out there in a
very, very public way. That's the process during the inquiry.
You are
quite right; after the inquiry, when we're done our work and the commissioner
gives his report, which is for December 31, 2019, we pack up our files. We go
back to our other lives. Our records all go over to – as it's set out in the act
–the act is not so prescriptive – it says someone has to take care and custody
of them. I understand the current procedure is that they go the Department of
Justice and Public Safety.
I
suppose that's subject to change, but someone's going to get them; someone in
government will get them. Then they are just subject to regular ATIPPA requests
because they're now documents in the care and custody of the Department of
Justice and Public Safety or whoever has them and then people can make ATIPPA
requests, as they do in the usual course, and get responses under ATIPPA.
So you
are right. It is two different levels of disclosure but, at the end of the day,
all these records will be subject to the usual ATIPPA regime.
MR. SPEAKER:
Ms. Michael.
MS. MICHAEL:
A follow-up question, and I
do have one more point after this follow-up question.
It's
still not clear to me. So when the report of the inquiry comes out, will what
had been held back as confidential become public at that point in time? You're
saying no. I see your head saying no.
MS. O'BRIEN:
(Inaudible.)
MS. MICHAEL:
Okay, so that's my concern.
MS. O'BRIEN:
I would just put on the record, if I may, no, what happens, when we're done our
work and the commissioner submits his report, we don't then put out everything
in public. We just pack it up, deliver it to the Department of Justice and
Public Safety, say, but then people can make requests and would be subject to
the usual vetting under ATIPPA, the usual ATIPPA scheme.
Thank
you.
MR. SPEAKER:
Ms. Michael on another point.
MS. MICHAEL:
The other point has to do
with something Mr. Learmonth brought up. With regard to ATIPPA and our ATIPPA
and the fact that the public body being exempt under other similar acts in a
couple of places in the country, I'd like to point out that Commissioner Wells,
when he did the 2014 ATIPPA report, did deal with the requested exemptions to
the access principle. He looked very seriously at what Justice Cameron had gone
through in her inquiry. While it wasn't a company, she was dealing with the
health care system and dealing with physicians, medical people wanting their
stuff to be kept confidential, she made a strong recommendation with regard to
that particular context of, no, their stuff should not be confidential.
I think
that Justice Wells, he gave serious, serious consideration. I'd really like to
point out the fact that he did not do what others did; he left it the way it is,
and I think he did that after great consideration. If we read chapter nine of
his report, you see that there. That's something I'm looking at very seriously.
MR. LEARMONTH:
Could I speak to that?
MR. SPEAKER:
Absolutely.
Mr.
Learmonth.
MR. LEARMONTH:
I agree that this wasn't an
error or wasn't an accident; it was intentional. I'm just pointing out that –
certainly, I'm not suggesting that there's something wrong with it or anything
like that, it's just a slightly different approach that was taken, for example,
in Ontario. I'm not saying that there's something wrong with it. It says what it
means; it's just a different approach.
I'm not
suggesting that it's an error or it shouldn't be there. But it is here and we
have to deal with it, and we think we come under it. We think it's an
appropriate case, but that's for you to decide.
MS. MICHAEL:
Thank you and I guess just to
add one more thing. I wasn't being accusatory or anything, but I think it is
significant for us to consider that, after careful consideration, Justice Wells
did not make that recommendation and he believed that what we had, I think, in
our province was superior to what was elsewhere. We all know how thoughtful he
is and I think he gave great thought to this. Just to make that point.
MR. LEARMONTH:
I don't disagree with that at
all.
MS. MICHAEL:
That's right, yes. Thank you.
That's
all for now. I have a lot of other things, but as we move forward.
MR. SPEAKER:
Thank you, Ms. Michael.
Mr.
Davis.
MR. P. DAVIS:
Thank you.
An
interesting comment and I'm glad that Ms. Michael raised it because I sat here
in the Legislature during the discussions around access to information –
MS. MICHAEL:
Paul, could you speak up? I
can't hear you.
MR. P. DAVIS:
Oh, I'm sorry.
MS. MICHAEL:
Thank you.
MR. P. DAVIS:
I said I, as well as Ms.
Michael, Mr. Hutchings and the other Mr. Parsons as well was here, we all sat
here in the Legislature during the time of debate and much public discussion
about access to information and protection of privacy. I remember it quite well,
and I remember the need and the significant focus on access to information and
public disclosure. I think Ms. Michael's comments regarding Judge Wells's
deliberations and consideration of Justice Cameron's commentary were valid and
very important.
I have a
couple of questions, and there's no particular order. But it comes to mind
during my thoughts coming to this inquiry – and for you in particular, Ms.
O'Brien, it's quite valid. We recently had the Barry inquiry, which you were in
the same role as you are on this inquiry. Mr. Barry led an inquiry into the
death of Mr. Dunphy.
Ms.
O'Brien, can you enlighten us on how access to information was dealt with during
that inquiry?
MS. O'BRIEN:
Absolutely.
At the
time, the amount of documentation that we were dealing with in the Donald Dunphy
inquiry and Justice Barry's inquiry was almost insignificant in comparison to
the amount of documents that we will be dealing with in this inquiry.
The
Donald Dunphy inquiry, we did consider ourselves subject to ATIPPA; we did not
seek an exemption. We had no ATIPPA requests, to my memory. The record may show
otherwise, but if we did, it would have been one or two. I know there were
requests made after we finished our work and requests would have been made then,
but during the course of the inquiry, it really didn't take up any of our time
that I can really think of. This is a different case.
As Mr.
Learmonth said earlier, really the reason we're here today has a lot to do with
the volume of documents. I had an estimate from another counsel who had been on
the Cameron inquiry which, as you just alluded to, was, of course, the hormone
receptor testing inquiry.
A
counsel I was speaking to, who was involved on that inquiry and is now going to
be involved with this one, has estimated that we will be facing between 100 and
1,000 times the number of documents that was being dealt with in Cameron. We are
on a very different scale here. Our concern here is that we want to make sure
the work that's been entrusted to us is not compromised in any way.
It's a
huge dollar amount that would have to be spent in order for us to keep up with
ATIPPA requests, $300,000 to $400,000; or, if Mr. Learmonth is correct, even
more than that. That's not a small amount of money for this province,
particularly at this particular time. So we want to make sure that's value well
spent; but more important than that to us, because we're most concerned with the
integrity of the work we do, we want to ensure that our ability not be
compromised in carrying out our mandate. We don't want to be compromised in
carrying out our mandate. So that's the most important point for us.
MR. SPEAKER:
Mr. Davis.
MR. P. DAVIS:
Thank you, Mr. Speaker.
Ms.
O'Brien, I think what I'm hearing from you, and one of the significant messages
or points you're making here is one of what would be involved in the
complexities and the work that would be needed to carry out and to respond
appropriately as required under the act for access to information requests.
Would it
be fair to say it's really one of resources? In a major way, it's part of
resources. Is that what I'm hearing from you, resources of the Commission to be
able to handle what potentially could be a difficult task to keep up with
potential requests through access to information?
MR. SPEAKER:
Ms. O'Brien.
MS. O'BRIEN:
Thank you.
Certainly, resource is one reason, and that's the one I just spoke to. In the
letter that Commissioner LeBlanc wrote to the committee, it's the third reason
he mentioned there, resources; but, I don't want to lose the fact that he did
raise two other reasons. They have to really do with the quality of the work,
and that would be our ability to carry out a thorough investigation.
Investigations are typically not done in public, and there are good reasons for
that. Because investigators do need to have the freedom to explore avenues –
evidence as the investigation is unfolding. There is also the very important
piece of the co-operation of the parties.
Currently, as Mr. Learmonth said, we have had wonderful co-operation, both from
the government and Nalcor. Those are the two bodies we have interacted most with
at this point. Having their continued co-operation is important to us in terms
of the success of our ultimate efforts.
We
believe if they have to be concerned about – at this stage, if they send
documents over to us, whether they might go out under ATIPPA, not through the
processes and the rules and procedures that the commissioner has developed, that
would be, we are anticipating, of some concern to them and may cause things to
flow much less smoothly: more applications to court, more time, more effort,
more expense.
So it is
both. It is definitely, Mr. Davis, a resource issue, but it's also the ability
to do a thorough and full investigation.
MR. SPEAKER:
Mr. Davis.
MR. P. DAVIS:
Thank you.
It may
come back to me. I'm sure others are going to have some questions as well, or I
expect they will. So it may come back to me, and I intend to further comment on
resources.
One
question, and it's not for either one of our guests, but maybe for the Clerk or
for you as Chair. My understanding under access to information legislation is
the reason the Management Commission is dealing with this here today is because
the House is not in session. If the House was in session, this would be a matter
to come before the House.
The
legislation also indicates that this is to come before the House during the next
session, which I would assume to mean the next scheduled session which starts in
three weeks' time, just a little over three weeks' time, February 26, then would
end in late spring, the end of May, the 1st of June. So this would have to come
back to the House before that point in time.
CLERK:
(Inaudible) an amendment to
the act.
MR. P. DAVIS:
Yes, and whatever decision
the Management Commission makes it would have to come back to the House. This
decision then, potentially, could be a three-week decision.
CLERK:
The order would continue in
force until an amendment either the sitting finished at the end of the spring,
at which point it would expire, or it would be superseded by an amendment to the
act to establish the Schedule B.
MR. P. DAVIS:
So once the House closes, if
I understand, I ask Madam Clerk –
CLERK:
If there's no amendment
brought forward –
MR. P. DAVIS:
Yes.
CLERK:
– once the House recesses
after the spring sitting, the exemption would be no longer in place.
MR. P. DAVIS:
Okay.
MR. HUTCHINGS:
If I could just clarify
something on that.
MR. SPEAKER:
Yes, sure.
Mr.
Hutchings.
MR. HUTCHINGS:
So the exemption would expire
after that session of the Legislature would close. Then could it be revisited
back here at the Management Commission again for a temporary exemption?
CLERK:
I would have to go to legal
counsel to get that, but our read of the act is the intent is that this is a
temporary measure and then it would be incumbent upon the government to bring
forward an amendment to the legislation.
MR. HUTCHINGS:
When the Legislature sits,
which is three weeks.
CLERK:
Yes. I don't think you could
always use the House –
MR. HUTCHINGS:
No, I'm just suggesting. But
in terms of actual ability to do it, it does exist; and recognizing, as Mr.
Davis has said, I think the House is set to reconvene on February 26, which is a
few weeks.
CLERK:
Yes. It's similar into the
statutory offices where we can do – the Management Commission does acting
appointments until there's a resolution brought to the House.
MR. HUTCHINGS:
Sure.
I'm
sorry, Paul.
MR. P. DAVIS:
No, no that's fine. There
were good points you make, because access to information is a very serious
matter and it's not something that we, as legislators, should take lightly. It's
something that we know, from our own recent history in this province, to be of
utmost concern and importance to the people of the province. It's something we
should take very, very seriously.
One of
my thoughts and considerations of this as we're discussing here now is that
we're going to be in the House in less than four weeks from now. We'll be here
in a full Legislature with all Members of the House which could provide the
opportunity for a full debate. Of course, the government reserves the right to
reconvene the House at any time that it needs to come to the House to introduce
a bill that's of importance.
That's
why I raised that question, because either way it's going to have to come to the
House, as I understand, between now and the end of May or the first of June. Or
what we do here would expire anyways, I understand from the Clerk. I point it
out because in a matter of such importance, the government does have the right
to recall the House or to introduce it on the first day the House sits on
February 26, if it so desired.
MR. SPEAKER:
Mr. Browne.
MR. BROWNE:
Thank you, Mr. Speaker.
I did
want to ask, Ms. O'Brien: Could you estimate or give some sense to the
Commission what percentage of your overall submissions, in terms of documents
you'll be receiving, would you estimate to be from Nalcor and the Government of
Newfoundland and Labrador?
MR. SPEAKER:
Ms. O'Brien
MS. O'BRIEN:
Mr. Browne, it's difficult at this time to give you a precise figure because,
obviously, while we touched base with other parties, and we are expecting
documents to come from them, we haven't gotten an assessment of their numbers of
documents yet. I certainly think that we would – 80 per cent of our documents
coming from government and Nalcor, it's going to be around that ballpark.
I'm
looking at Mr. Learmonth because he will probably have his own estimate.
MR. LEARMONTH:
I think I'd go along with that, but it is a bit of a rough estimate.
MR. BROWNE:
Sure.
MR. LEARMONTH:
Because there are other parties who will have to supply documents. We can only –
MR. BROWNE:
Of course.
Just for
my clarity and the clarity of those who are watching and Members of the
Commission, if, in fact, 80 per cent of what you receive, in terms of documents,
comes from Nalcor and the Government of Newfoundland and Labrador, can you
confirm or perhaps clarify whether those are existing public bodies which are
subject to ATIPP now? Is that correct?
MS. O'BRIEN:
That is correct.
The
Government of Newfoundland and Labrador answers ATIPP requests on a daily basis,
as Nalcor does – I don't know on a daily basis but I know they regularly answer
ATIPP requests. They put all their requests and the documents produced in
responses to those requests online.
Whether
it's 80 per cent, give or take, all that body of documents is still – this
exemption will not change that. All those documents will still be as accessible
as they are today and were yesterday through the regular ATIPPA processes for
people in Newfoundland and Labrador and beyond who want to make –
MS. MICHAEL:
At this moment.
MS. O'BRIEN:
At this moment. Adding the Commission to Schedule B will not change that.
MR. BROWNE:
Ms. O'Brien, if this exemption is not granted and the Commission is subject to
the ATIPP, would it be possible that a scenario could be that an ATIPP request
could be submitted to Nalcor for the very same document that an ATIPP request
could be submitted to the Commission for? Would both bodies coordinate to put
out one response or would both be obliged to provide a response?
I'm
asking: Would there be duplication if this exemption is not granted?
MS. O'BRIEN:
Absolutely. Yes.
To
answer your question, it would be possible for people to make identical requests
to both public bodies. My understanding is both public bodies would have to
respond independently because they have to look through all their records. They
may have slightly different records or whatnot. There's no coordination. That
could be a huge duplication of resources, ultimately coming out of the public
purse.
MR. BROWNE:
Ms. O'Brien, could I also ask: With respect to the letter that Justice LeBlanc
sent the Speaker, he mentions an arrangement that has been constructed
surrounding the issue of privilege and documents. Could you expand on that for
the Commission?
MS. O'BRIEN:
Absolutely.
The
rules of procedure of the Commission are published on our website, which is at
www.muskratfallsinquiry.ca. Our rules of procedure are there.
The
procedure that's been developed is if a party who's subject to a summons has
documents in their possession that they believe should be subject to a privilege
claim – solicitor-client privilege or any number of privileges that are
available – what they first do is meet with Commission counsel. We see the
documents; we review them together. If Commission counsel and the party's
counsel agree with the party's counsel assessment that's privilege, then we
would redact that information and be done with it.
If we
get to a point where we cannot agree – for example, Mr. Learmonth and I feel
that's information that's not subject to privilege and the party's counsel
believes that it is – then the procedure there would be that we would go before
a judge of the Supreme Court of Newfoundland and Labrador. The commissioner has
made arrangements with the chief justice of the Trial Division of the Supreme
Court so that we would have a judge available to deal with those issues as they
arise.
We don't
expect we're going to get rid of issues, but we've tried to have a very
efficient, cost-effective, time-effective process to do that.
Our
concern is if we do not get the ATIPPA exemption, we will be able to resolve far
fewer issues with Commission counsel, counsel for the parties, getting a meeting
of the minds around the table. We would be having to go and use the resources of
the Supreme Court much more frequently.
MR. BROWNE:
Ms. O'Brien, just one final
question, at this time, that I'd like to ask: If the exemption is not granted,
would that affect the timeline of the conclusion of the inquiry, in your mind?
MS. O'BRIEN:
We certainly hope not. Our
commissioner has been very straight with us that he expects to get his work done
on time. He is a man – when he's focused on a goal, I have no doubt that he'll
be able to achieve it.
But, of
course, you can't foresee everything. We do have concern, to the level that our
resources could be taxed, that it could – it's possible that it could put the
deadline in jeopardy. We would do everything in our power not to have that
happen, but to not have that happen, that would necessitate a greater spend of
resources, there's no doubt about that.
MS. COADY:
Mr. Speaker.
MR. SPEAKER:
Yes.
Okay, we
have Ms. Michael scheduled to go.
Ms.
Coady, you'll be directly after.
Ms.
Michael.
MS. MICHAEL:
Thank you very much, Mr.
Speaker.
I want
to make a general statement and then pick up on the evidentiary privileges
point. I think it's really important for us all – and I'm sure we do, but I
think we need to say it here at this meeting, which is a public meeting, which
we know people are paying attention to.
One of
the expectations I think of the public – we all know this is a very special
inquiry. We all know the situation that we're dealing with, with regard to the
Muskrat Falls Project and I think we have to recognize that. One of the things
that has come out in the public over the last years over and over and over again
is the lack of transparency of the project, the lack of transparency of Nalcor
in doing this project.
One of
the things I think that I heard people calling for is openness and transparency.
They want information. They want to see it. They don't want, after this inquiry
– and I'm saying this; this is not to counsel – two years down the road, then
having to get an ATIPPA to even try to find out things that have been named as
confidential.
We have
a major problem here. We have public expecting that they're going to get full
information and in a timely fashion. The concern I have, and it has to do
directly with what Ms. O'Brien has just been outlining, we do know that the
evidentiary privileges that are under the
Public Inquiries Act could mean ending up in court to get a resolution.
What's holding things back is what I'm hearing and what I saw in Mr. LeBlanc's
letter is, number one, that government has put a two-year deadline on their work
and they do not have enough resources to deal with ATIPPA if they don't get the
exemption. And that's not their problem. They shouldn't have to be dealing with
it. Mr. LeBlanc shouldn't have to be dealing with it.
So we
have a very serious discussion here. What comes first, deadline in jeopardy or
the right of the people of the province to know in a timely fashion? I'm
pointing out “in a timely fashion.” They've already been years upset over what's
going on. We've had billions of dollars already spent on this project. Is
government now going to hold back $300,000 or $400,000 in order for the inquiry
to have the sufficient resources if they do not get an exemption?
It's a
big issue that we have to deal with. I'm really quite concerned because I do
know, and I think any of us who say that I'm wrong are putting our heads in the
sand, that the public are going to be really upset if they know that they're not
going to see certain documentation until after the inquiry is over and they,
through ATIPPA, have to go to the Department of Justice.
To let
people know, because not everybody has the act in front of them, but under
evidentiary privileges in the Public
Inquiries Act it says very specifically that a rule of law that authorizes
or requires the withholding of records, documents or other things or refusal to
disclose information, on the grounds that the disclosure would be injurious to
the public interest or would violate Crown privilege, does not apply in respect
of an inquiry under this act. What that means, for example, is that the
protection for Nalcor under the Energy Act
doesn't supersede the public inquiry. No piece of law that we have supersedes
the evidentiary privileges of the inquiry.
Now, we
do know, as it's been explained by both counsel, that it can mean ending up in
court and that can take time. What we're going to have to struggle with in
making a decision is what is more important: Government removing a deadline so
the inquiry can do its work under the law as we have it, or give the exemption
and then cause a real creation for the public of this province with regard to
getting timely disclosure of what they're expecting to learn in terms of the
type of documentation they're expecting to be able to get information on? They
don't know the details, but the type of information they're looking for.
I think
we're skirting that very, very serious issue. Again, I'm pointing out that this
is not a legal issue that's the concern of counsel, but they have to understand
what we're having to deal with as the people who are going to be making this
decision.
MR. LEARMONTH:
Could I expand? I just wanted
to clarify one point.
MR. SPEAKER:
Sure.
Mr.
Learmonth.
MR. LEARMONTH:
I have listened carefully to
what you've said and I believe I understand your concerns. So that has to do
with the financial part about it, the extra cost and so on. In terms of the
evidentiary privileges, there's one other point I'd like you to consider. I'll
do it by way of an example. A company, a corporation has a right to claim
solicitor-client privilege for a document. They don't have to disclose
solicitor-client privilege.
So a
company following that approach could send us the document with their
solicitor-client redacted. Now, under the system that we hope will work here,
the companies won't do that. They will send everything un-redacted and then
we'll have this review process – it will be reviewed by Ms. O'Brien and I and if
we agree with their position, that's fine, but we will have seen it to satisfy
ourselves. If there's a problem, then it goes to the Supreme Court judge who
will be appointed.
MS. MICHAEL:
Right.
MR. LEARMONTH:
The point I'm trying to make
is that if we don't get this exemption, and it's possible – no one has said
this, but it's certainly a possibility, in my mind anyway, that a company might
say, okay, if this is subject to ATIPPA we're not giving you any of these
documents over which we claim solicitor-client privilege and we'll go to court
to protect it. Whereas if we are exempt from ATIPPA and the company decides to
comply with our rules, we will at least see it to satisfy ourselves as to
exactly what is in it. We'll get to see it and if there's an argument, it will
go to the judge.
If the
exemption isn't granted, it could affect the documents that we get, the flow of
documents that are covered by solicitor-client privilege. We won't get as much
and everything may be redacted. There is the cost factor, but there's also the
fact that if we're not made exempt from ATIPPA, a company may take a formal
legal position that we're not giving you anything that's solicitor-client
privilege and then we won't see it. So we won't get as much from the
corporations and that will inhibit our ability to make a fulsome assessment of
all the evidence.
MR. SPEAKER:
Ms. Michael, just on a point
and then we have Ms. Coady followed by Mr. Davis.
MS. MICHAEL:
Yes, I'm not a lawyer so I
want to check out subsection 12(3): “Notwithstanding subsection (1)” – this is
under the Public Inquiries Act which
says that you could end up in court – “but subject to subsection (4)” – which
doesn't deal with what we're talking about here right now – “a person shall not
refuse to disclose information to a commission or a person authorized by a
commission on the grounds that the disclosure is prohibited or restricted by
another Act or regulation.”
MR. LEARMONTH:
Yes, but –
MS. MICHAEL:
Where does what you're saying
fit under that subsection? I know you're referring to solicitor-client
privilege.
MR. LEARMONTH:
Okay. Yeah.
The
claim to solicitor-client privilege is not written in any act or legislation.
MS. MICHAEL:
Or a regulation.
MR. LEARMONTH:
It's a part of the common
law.
MS. MICHAEL:
Right.
MR. LEARMONTH:
In fairly recent decisions,
the Supreme Court of Canada has clearly said that's a substantive right. It's
enforced and guarded very carefully by the Supreme Court of Canada.
Solicitor-client privilege is not something that is just you look at a statute
or a regulation and it's written down; it's developed through the English
common-law system. It's a right that the Supreme Court of Canada has indicated
they're very vigilant about protecting a person or corporation's right to claim
solicitor-client privilege.
With
respect, I don't think there's anything in section 12 of the act under
evidentiary privileges that would prohibit someone from making a claim to
solicitor-client privilege and, if justified, having that claim confirmed by the
Supreme Court.
MR. SPEAKER:
Ms. Coady.
MS. MICHAEL:
I have one more question, but
I'll come back to it.
MS. COADY:
Thank you very much.
I want
to thank the commissioner and counsel for bringing forward this important issue
and for the opportunity to speak to it. I do note on the reasons for the request
the commissioner feels if he has to move forward with ATIPPA, it would have an
impact on the ability to carry out a thorough investigation.
He goes
on to speak to how other public bodies, other investigative bodies, for example
the RNC, other statutory Officers of the House of Assembly and any workplace
investigations are exempt from disclosure. He talks about if the Commission of
Inquiry is required to respond to ATIPPA requests during the course of this
investigation, the investigation will be hampered.
I take
those words very seriously, as we all do. I want to make sure that the public
right to know the issues and concerns around Muskrat Falls are well known, and I
think that it would be important for us in this very open process of a public
inquiry, ensuring maximum disclosure, maximum capability of investigative
powers, maximum outcome and improving of processes to ensure what comes out of
the inquiry is in the best interests of all of Newfoundland and Labrador. I
would think that we would want to adhere to request of the commissioner because
of his ability and to ensure his ability to do a thorough investigation.
I do
note that government and Nalcor are always subject to ATIPPA, so that would
remain the case. It would just mean that during the course of the investigation,
during the public inquiry, the public inquiry itself, work would not be subject
to ATIPPA. But, of course, all those records would become public following the
public inquiry.
I also
want to note – I did hear the issues around transparency and accountability, and
I think a public inquiry gives the utmost in accountability and transparency in
that on a daily basis, of course, there will be hearings, there will be
discussions on documents and there will be discussions on issues and manners of
all same. I think that is paramount to getting to the bottom of Muskrat Falls
and the concerns that the people of the province have.
So I'm
supportive of Commissioner LeBlanc's request. I do think that the people of the
province want to get to the bottom of this issue; they want to have a thorough
investigation. As I said, government, as well as Nalcor, are still subject to
ATIPPA and, of course, all documentation and all information will be available
publicly in any event.
I wanted
to put that on our record and I wanted to say to counsel that I appreciate their
work, I appreciate the timeliness of their work because, of course, the Muskrat
Falls concerns have been known for quite some time and now we will hopefully get
to see how the decision-making process was made and all the information will be
out there in public realm.
Thank
you.
MR. SPEAKER:
Thank you, Ms. Coady.
Mr.
Davis.
MR. P. DAVIS:
Thank you very much.
I have a
number of comments I would like to make, but first of all I'll just follow up on
Ms. Coady's comments. I'm not convinced or satisfied at this point in time that
all records will become public at the end of the inquiry. They'll be passed over
to government and then government would have a number of options and
opportunities available to them. There's been no formal assurance if that would
happen or how that would happen.
The
inquiry itself could easily take the position that at the end of the inquiry
they will release all documents or make them public, but that's not the normal
process. I understand from Ms. O'Brien that would happen and I'm not confident
that government would.
We have
a serious matter here. I appreciate the commentary from our guests that
represent the inquiry. Cost is certainly an issue, but we know that access to
information costs should not be a barrier to access to public information and
what should be available. If it does cost some money to do so, that's the cost
of doing business quite often in government.
We know
in government today that access to information coordinators are busy and
departments are busy. It's a difficult, difficult task to keep up sometimes with
the number of requests, the quantity and the quality of requests and so on. But
that's not a reason for government not to abide by those requests and it
shouldn't be.
There
are six of us, and you, Mr. Speaker, as Members of this Commission. It comes to
mind this morning that Ms. Coady is the minister of the department who is the
front and centre of this. Mr. Parsons is the Minister of Justice and Public
Safety and Attorney General. I'm a former Cabinet minister and premier. My
colleague, Mr. Hutchings, is a former Cabinet minister.
Some may
say or make the case or take the position that all four of us here have or may
have or potentially could have an interest personally to ourselves. It could be
judged as being in a conflict. I suggest here, on a matter of such importance I
don't think it would pass the test of the public for us in this forum as a
Management Commission when we have four of us here in these positions to make
this very serious decision.
I don't
want to be an obstructionist to the Commission. I've said publicly I have
nothing to hide. I called for publicly that the inquiry take place. The
government agreed and announced then in November the inquiry would take place. I
certainly don't want to obstruct the process; I certainly don't want to obstruct
the flow of information. I want to have the best opportunity for the
commissioner to do the work and understand the concerns of the commissioner and
the Commission itself.
I
believe this is a matter that should be discussed in the full of the House and
the full House of Assembly. I want to do some work and review further what
Justice Cameron has said and what Justice Wells may have considered. I think
they are very important points as well.
I think
it's a matter that should come to the full of the House. We're a little over
three weeks away from a sitting of the House and the government could call the
House. I think it's important that we make a full discussion and consideration
of what the justice has asked.
I'm not
satisfied this is the right forum for us to do this. I'm not satisfied that all
the information will be made public at the end of the inquiry.
MR. SPEAKER:
Ms. Michael.
MS. MICHAEL:
Thank you, Mr. Speaker.
I do
want to support what Mr. Davis is saying. We are here as a Management Commission
with certain responsibilities, there is no doubt, but we're not here officially
representing our caucuses actually.
You'll
notice, when we identify ourselves we identify ourselves as MHAs. While the
rules and regulations make sure there's representation from all parties on the
Commission, for us to have this responsibility, just ourselves, I think, is
wrong. I absolutely agree with Mr. Davis on that point.
I do
want to come back to something else that was said by Ms. Coady. I think it's
important to point out that under the
Energy Corporation Act the section which is called records of commercially
sensitive information, section 5.4(1): “Notwithstanding section 7 of the
Access to Information and Protection of
Privacy Act, 2015, in addition to the information that shall or may be
refused under Part II, Division 2 of that Act, the chief executive officer of
the corporation” – and in the energy act the corporation is Nalcor, that's the
definition of the corporation – “or a subsidiary, or the head of another public
body, (a) may refuse to disclose to an applicant under that Act commercially
sensitive information of the corporation or the subsidiary; and (b) shall refuse
to disclose to an applicant under that Act commercially sensitive information of
a third party where the chief executive officer of the corporation or the
subsidiary to which the requested information relates, taking into account sound
and fair business practices, reasonably believes ….”
I'm not
going to read the whole section but, in actual fact, the
Energy Corporation Act exempts Nalcor from significant pieces of
ATIPPA. I think that point needs to be made because I did hear Ms. Coady say
that Nalcor is covered by ATIPPA. It has major, significant exemptions based on
the Energy Corporation Act.
MR. SPEAKER:
Mr. Davis.
MR. P. DAVIS:
Yes, just a very quick
comment in that. My recollection and understanding is this is commonly used by
Nalcor, third party notice and commercial sensitivity. It's quite often used.
MS. MICHAEL:
Oh, yes.
Well,
they use it all the time because the
Energy Corporation Act says they may and we can't get the information. This
is one of the reasons why I think government was forced, by public opinion and
the Opposition voice in the House of Assembly, to finally set up a public
inquiry. I think this is so important to point out.
There is
so much information that is protected for this corporation that other
corporations haven't been protected for under ATIPPA. That's why the public have
been so incensed over not having real information about what's going on with
this project.
I need
to make this point really strongly: It is totally protected and the exemption
continues that. The exemption continues the information being protected. To me,
the fact that at the end of the inquiry everything goes to the Department of
Justice – and if people want to start then trying to get the information, they
could be 10 years down the road still looking for it.
Now, if
the inquiry doesn't get the exemption and has to do the work in three or four
years – it could be, we're still waiting for some information. But if they don't
get the exemption, then we can have documentation being released as the inquiry
is working.
I
understand the concerns. I understand what can happen if that is the case. But I
also understand the people of this province have been promised openness and
transparency. I don't see it happening with the way things are going right now.
I know
the commissioner wants it. I know that. I don't question that at all. I know
counsel has its commitment. I believe that. I think there have been restrictions
laid on and I can't speak strongly enough to it at this moment.
I've
heard nothing yet that is changing my thinking at the moment. I'll continue
asking questions however long it takes.
MR. SPEAKER:
Mr. Browne.
MR. BROWNE:
Thank you, Mr. Speaker.
I just
want to make reference to some comments that Mr. Davis made with respect to
conflict and whether or not the Management Commission should be considering this
matter.
I think
coming out of last year's MCRC one of the recommendations that independent panel
made was to ensure the Management Commission follows its fiduciary
responsibility to address matters that it is empowered to address. If Mr. Davis
says that he, Mr. Hutchings, Ms. Coady and Mr. Parsons are in conflict, would
those people not be able to participate in a vote or partake in debate in the
House of Assembly?
I
believe this matter needs to be addressed. If the commissioner feels that it's
going to impede the investigatory ability of the Commission – the people of this
province have waited far too long for the veil of secrecy to be lifted on the
Muskrat Falls Project.
I say to
Ms. Michael: None of us are lawyers here, with the exception of Mr. Parsons. I
would question your interpretation of the act because my interpretation is that
Nalcor is subject, with the exception of commercial sensitivities.
If you
look at the public body clause, subsection of the ATIPPA, it says a constituency
office of a Member of the House of Assembly is also a public body considered,
but it is also exempt from ATIPP as a caucus record and as a political record.
Through the ATIPP process, there are measures in place that not every piece of
information can be released.
I
believe the people of this province deserve a fair and open hearing of the
Muskrat Falls debacle. That's what the inquiry itself is set up
to
address. In my view, it's the most open and transparent way to address the grave
concerns that the people of the province have.
MR. SPEAKER:
Mr. Hutchings.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
I wonder
if I could go back and just ask a question in regard to our guests and counsel.
Ms.
O'Brien, I think you indicated there was reference made to the Dunphy inquiry
and Judge Barry's overseeing that process, and reference made to, at that time,
requests for ATIPPA during that process. Could you again just reference what
transpired in that particular case in regard to if there was and how they were
handled?
MS. O'BRIEN:
Yes, absolutely.
Now, Mr.
Hutchings, I can only do to the best of my memory here today.
MR. HUTCHINGS:
Sure. Yes.
MS. O'BRIEN:
When we started our work, we
did look at ATIPPA. We did read that we, as a public inquiry, were covered by
the ATIPPA legislation. Justice Barry did not seek an exemption for the Donald
Dunphy inquiry.
I
believe for a time I was actually appointed the ATIPPA coordinator for that
commission. I do not recall getting a single ATIPPA request. I do recall at one
point that government had an ATIPPA request and we were consulted as to whether
we had any input on that. We didn't, was my memory at the time, but I don't
recall us ever getting an ATIPPA request.
MR. HUTCHINGS:
Okay. So in that scenario, if
you had received one, there would be a determination made by counsel of whether
there was privilege, or reasons, or solicitor-client, or whatever, of why that
wouldn't be released. Would that be true? You would have to make a
determination?
MS. O'BRIEN:
We would have, without an
exemption –
MR. HUTCHINGS:
Yes.
MS. O'BRIEN:
Whether we started getting a
lot, maybe Commissioner Barry would have sought an exemption. It's hard to say
that here today, but the fact is we didn't. Had we gotten a request, unless we
had an exemption, it would have been our duty to fulfill our obligations under
ATIPPA – absolutely.
MR. HUTCHINGS:
Yes. Sure.
MS. O'BRIEN:
It really was not an issue.
Again, the amount of documentation in the Donald Dunphy inquiry would have been
much smaller than that even under the Cameron inquiry.
What
we're looking at today compared to the Cameron inquiry – as I said earlier, one
lawyer who was involved in both of them and aware of the volume of documents
they're getting, he's estimated to be 100 to 1,000 times greater. So that's what
we're dealing with.
MR. HUTCHINGS:
Another point of clarity, if
I could.
Mr.
Learmonth indicated – I think we had a discussion in regard to determination of
privilege and the exemption provision of whether it existed or not. I apologize,
but could you just take us through again how the exemption would affect your
determination of the privilege or protecting information when you go through the
investigative process.
MR. SPEAKER:
Mr. Learmonth.
MR. LEARMONTH:
I attempted to answer that by
an example. If a party has the right to claim solicitor-client privilege over
advice they received from a lawyer. If a party takes the view, well, I'm going
to redact the solicitor-client privilege items; I'm not giving it to the
Commission because they may have to release it in an ATIPPA request that's made
to the Commission. I don't want that to happen. So what I'm going to do is I'm
going to redact it and then make an application to court to confirm that this
information is protected.
Now, in
the case of an ATIPPA exemption, if that is granted, I believe – I can't say for
sure because we haven't had this before – with our rules the procedure that a
party would follow would be that they would give us the document un-redacted and
then we'd see what's in it. If it is covered by solicitor-client privilege, if
we agree with that, then we would agree to it being redacted, but we'd have the
opportunity of seeing it. What are they trying to cover? I don't mean that in a
negative way. They have a right to it. If there's a dispute, it would go to a
judge who would be designated by the chief justice in an informal basis.
The
advantage that an ATIPPA exemption would give us is I think we would see a lot
of the legal advice, for example, that Nalcor, for example, received.
MR. HUTCHINGS:
Yes.
MR. LEARMONTH:
Whereas if there's no ATIPPA
exemption, it's unlikely that we would.
Now, I
want to emphasize. I'm just talking on – we haven't dealt with this issue
before, but that's a scenario that I think is reasonable to believe could exist.
It may come at us today or tomorrow.
With an
ATIPPA exemption, I believe we have a much greater chance of seeing all the
legal advice, for example; whereas if there's no exemption, a party may choose
to redact that information and we'll never see it. They may have good legal
grounds to redact it.
MR. HUTCHINGS:
Okay, just a follow-up to
that.
In that
scenario, with an exemption in place, your expectation would be that there would
be less reluctance to maybe redact information when you're asked?
MR. LEARMONTH:
I say that with great confidence, that if we are not subject to ATIPPA, parties
will feel free to follow the procedure we have set out in the rules, the
informal procedure where they'll give us the document and we will review it. If
we agree there's solicitor-client privilege, we'll give it back to them or
redact it. If there's a dispute, it will be decided by a judge.
MR. HUTCHINGS:
Okay. So in that context,
that's the exemption. But with an exemption in place, that same party
understands that for the intervening period that the exercise is going on, the
inquiry, there is a temporary exemption.
I don't
know if protected is the right way, but they'd have some confidence that what
they're putting in would be vetted and they could make the case for privilege.
MR. LEARMONTH:
Yes.
MR. HUTCHINGS:
Yet, knowing that what we've
said, once the inquiry is over, supposedly all that information is becoming
available anyway.
MR. LEARMONTH:
Yes.
MR. HUTCHINGS:
How does that change? It's –
MR. LEARMONTH:
Well, you see, I don't know –
MR. HUTCHINGS:
I'm just trying to get it in
my mind, because at the end of the day there's information that should be made
available anyway, right?
MR. LEARMONTH:
What information? That's a question that I really can't answer for you. I'm not
exactly sure how that would apply.
MR. HUTCHINGS:
Yes.
MR. LEARMONTH:
I can't tell you that one way for sure or this way. There are legal issues
involved in that. I'm just talking about what I believe would be the tendency of
companies –
MR. HUTCHINGS:
Sure.
MR. LEARMONTH:
– to give it to us on that, but I can't say to you exactly what the result of
that will be when the inquiry is over.
MR. HUTCHINGS:
Yes. My final comment is – I
certainly respect your opinion, and you have far greater knowledge on this than
I would have. But if someone out there is concerned about releasing a certain,
say, solicitor-client privilege and there's an exemption exists and you believe
they would knowingly now not redact that and forward it to you, because they
know an exemption exists and it has to go through a process to determine whether
there's privilege and they have an avenue to go through to protect it, we'll
say.
MR. LEARMONTH:
Yes, right.
MR. HUTCHINGS:
That's with the exemption.
Even
with that exemption, they understand at some point down the road, if what we're
saying is accurate, all this information is going to be made available anyway.
Why would they knowingly – if they wanted to protect information – do it with an
exemption in place, knowing at some point down the road, that information is
going to be publicly available anyway?
MR. LEARMONTH:
I don't know for sure under
the ATIPP, when we turn over the records, whether there will be still claims for
solicitor-client privilege.
MR. HUTCHINGS:
Right.
MR. LEARMONTH:
I can't tell you exactly how that's going to happen. That's an unknown.
MR. HUTCHINGS:
No.
MR. LEARMONTH:
It's a legal issue that will
have to be decided down the road. I can't give you any confident assurance that
this is exactly how it's going to happen.
MR. HUTCHINGS:
No, sure, I understand that.
I appreciate it.
MR. LEARMONTH:
I'm talking about at this
stage, my perception – and it's only my perception – of the tendencies of
parties to make more fulsome disclosure to us if we're exempt from ATIPPA than
if we're subject to ATIPPA. I think there would be a little bit of a hesitation
if we aren't exempt.
MR. HUTCHINGS:
Okay.
MR. SPEAKER:
Ms. O'Brien, just on a point.
MS. O'BRIEN:
Yes.
There's
one thing I do want to make clear – and perhaps everyone in this room knows, but
I know the public is listening too – the role of Commission counsel. Commission
counsel is retained by the commissioner and we are his legal counsel.
In
carrying out our duties, the law states, and we are honour bound, to carry out
our duties in the public's interest. In other words, when we are doing our work,
it is the public's interest that we are representing, and first and foremost,
the public's interest in a full airing of all the relevant facts.
So us
being able to see and make decisions of what should be in and should be out,
when we're doing that, we are very much doing that through the lens of the
public interest. We are in that way working for the public. I just want to make
that clear.
Thank
you.
MR. SPEAKER:
Thank you, Ms. O'Brien.
Ms.
Michael followed by Mr. Davis.
MS. MICHAEL:
Yes, it's a follow-up to what
Mr. Hutchings was just discussing.
I guess
I'm still not clear – and you may not have the answer to this, as you've already
indicated with the question that was put to you by Mr. Hutchings. It's still not
clear to me why, if the documents are going to become public through passing on
to a department – and I question how public that is because I know what the
process is going to be – if they're going to become public anyway, as Mr.
Hutchings has indicated, why wouldn't they be part of the final report of the
inquiry and made public at the time with the report of the inquiry?
I mean
that's what happens with commissions, task force, et cetera, once the report is
out you can go in and you can find all the documentation that they had received,
et cetera. It's all there. Why wouldn't that practice be happening if the
exemption is only for protection while you're doing the actual work?
MR. LEARMONTH:
I don't necessarily agree with you that in all commissions of inquiry everything
that is filed is open to the public after the commission has completed its work.
There are confidential documents. They may be confidential by reason of –
MS. MICHAEL:
I realize that.
MR. LEARMONTH:
There may be commercially sensitive documents that we see but for whatever
reasons – and we have procedures under our rules to deal with that. So there's
no assurance that just because we receive a document that it's going to be
disclosed to the public, whether we're subject to ATIPPA or not.
Maybe
Ms. O'Brien would like to speak further to that for clarification.
MS. O'BRIEN:
No.
MR. SPEAKER:
Ms. Michael, on a point.
MS. MICHAEL:
I do realize that. I do
understand that the documents that you use still will have the inquiry – with
counsel doing the work, will still have the ability to determine whether
something should be made public. So I'm talking about everything that you would
determine could be public, why can't it be public, understanding that
restriction? Yes, I do understand that.
MR. LEARMONTH:
Yes.
MR. SPEAKER:
Ms. O'Brien.
MS. O'BRIEN:
Thank you.
Just to
speak to that, certainly everything that can be public and should be public will
be public during the course of our work.
MS. MICHAEL:
Yes.
MS. O'BRIEN:
Confidential exhibits are the exception, certainly not the rule. The
commissioner has to have an articulable reason. There is a balancing and a
weighing of the interest involved in making that decision, but the vast majority
– public inquiries, things really, really do become public and they go out there
in the public light.
MS. MICHAEL:
Right.
Thank
you.
MR. SPEAKER:
Mr. Davis.
MR. P. DAVIS:
Thank you, Mr. Speaker.
My
questions are still of the same discussion because under the
Public Inquiries Act,
I'm right in that a public inquiry can compel anybody to provide all
information, records and so on. Would that be accurate?
MS. O'BRIEN:
That's right.
The
commissioner has powers under the public investigations act, too, so he can
issue summons. He can even do something akin to a search warrant, actually, and
summon witnesses and whatnot.
The act
itself, the Public Inquiries Act, does
preserve certain privileges. I'll just say under section 12(1) of the
Public Inquiries Act it says, “A
person has the same privileges in relation to the disclosure of information and
the production of records, documents or other things under this Act as the
person would have in relation to the same disclosure and production in a court
of law.”
So the
Public Inquiries Act recognizes that
certain privileges are preserved, but the subsection (2) of section 12 goes on
and addresses specifically grounds of a claim that disclosure would be injurious
to the public interest or would violate Crown privilege. That subsection
specifically says that those types of privileges do not apply in an inquiry
under the act.
Does
that address your –?
Thank
you.
MR. SPEAKER:
Ms. Michael.
MS. MICHAEL:
(Inaudible) I'd like to make.
It has to do with – and I'm not being difficult, I'm just doing every single
angle in terms of openness and accessibility. You may not know the answer to
this, but you may have to find it.
When
everything from the inquiry then moves on to the department – we assume it's the
Department of Justice – people ATIPPing – because that's what they're going to
have to do – will be ATIPPing documentation which now – well, I'll put it this
way: How is that documentation now going to be classified?
Is it
documentation that is still inquiry documentation or is it documentation that
will now be under the jurisdiction of the acts as they are? Will documents that
are protected for Nalcor, under the Energy
Corporation Act, be protected at that time?
The
inquiry's over. The documents are there in the Department of Justice. What is
now going to rule the ATIPP requests that are going to come in? I don't know if
you know the answer to that.
MS. O'BRIEN:
I don't at this time. I can't give it to you in that level of detail. I
certainly know, for example, for solicitor-client privilege documents, if we get
something and we look at and we say: Yes, that's clearly solicitor-client
privilege, we wouldn't hang on to that information. We would recognize that
privilege. So that information wouldn't go any further.
I think
your question is specifically with respect to the exceptions under the
Energy Corporation Act, how that would
play out when those documents are ultimately turned over to the Department of
Justice and Public Safety. I don't know.
MS. MICHAEL:
Is there any way we can get
an answer to that question?
MR. LEARMONTH:
Could I –?
MR. SPEAKER:
Mr. Learmonth.
MR. LEARMONTH:
A lot of that we don't – that's uncharted water. It would depend, to a certain
extent, on the position taken by the party who gave the – they could make
an application of course. So it would be of no use for me to try and give you an
answer that satisfies that question.
MS. MICHAEL:
Right.
MR. LEARMONTH:
The best thing for me to say is I'm not sure. There are complicated legal issues
that would have to be
resolved in court. There are no judicial precedents that I'm aware for them, so
as I said, we're in uncharted water.
MS. MICHAEL:
Right.
Thank
you.
MR. SPEAKER:
Mr. Hutchings.
MR. HUTCHINGS:
Just one point, again, on the
issue of privilege.
If a
request for information was produced to you as legal counsel for the Commission
or the inquiry and you got to review it to make a determination that it should
be redacted or privileged, and when the inquiry is completed and the information
is turned over to the Department of Justice and Public Safety, the information
that you reviewed that you determined would be privileged and would not be
released – would anybody know what that review was or what that information was
contained after the inquiry is over and it's with Justice and Public Safety?
MR. SPEAKER:
Ms. O'Brien.
MS. O'BRIEN:
Yes, let's take an example of
solicitor-client privilege. That's a privilege that would be maintained. If we
looked at it and we agreed that was solicitor-client privilege, we would not
take that information. It would either be redacted if it's a part of a document,
or we wouldn't keep custody of the document.
MR. HUTCHINGS:
Okay.
MR. LEARMONTH:
But at least we would have
the chance to see –
MR. SPEAKER:
Excuse me.
Mr.
Learmonth.
MR. LEARMONTH:
At least in that situation we
will have had the chance to see it, to satisfy ourselves that it's not, for
example, a bogus claim to solicitor-client privilege. Under the rules that we
have we would get the benefit of seeing the documents, whereas, if there's no
exemption, it's possible we would never see them.
MR. SPEAKER:
Ms. Michael.
MS. MICHAEL:
I just want to ask Mr.
Learmonth what he sees as the benefit of seeing it, if you're not going to be
able to use it. What is the benefit the inquiry would be getting from you at
least being able to see it?
MR. LEARMONTH:
To satisfy ourselves that
this is a legitimate claim. In other words, let's say someone – this is all
hypothetical – claimed something was solicitor-client privilege and it wasn't.
Let's say it wasn't or they had an interpretation that really was weak.
They
claim solicitor-client privilege. This is without an exemption. Then, it would
have to be decided by the court. A formal application may have to be made to the
court.
MS. MICHAEL:
Yes.
MR. LEARMONTH:
Not the informal procedure we
have. A formal application to the court may have to go forward. That would slow
things down. The benefit we get, if parties comply with our rules, is we get to
see them and satisfy ourselves.
We don't
keep them. If it is solicitor-client privilege, pure legal advice, then we would
pass that back or redact it from the document. But as I say, we would have had
the benefit of satisfying ourselves that we're looking at everything, whereas in
the other situation, there would be a question mark because –
MS. MICHAEL:
Until the court decision.
MR. LEARMONTH:
Yeah.
But
then, if we had to go to court time and time and time again, the two-year time
limit becomes unworkable. Also, the time of filing applications and responding
to applications in court would really detract from our ability to focus on the
core documents that we hope we'll receive.
MS. MICHAEL:
Thank you.
MR. SPEAKER:
Mr. Browne.
MR. BROWNE:
Thank you, Mr. Speaker.
I
certainly want to reiterate my commitment and openness to transparency and
accountability. It's so important in an open, free and democratic society that
we have a free press. That we have the ability for our citizens to see the
documents they need to see to ensure things are not going awry. I think that's
part of the problem with Muskrat Falls and why there was a need to convene a
public inquiry.
I do
want to reiterate this is a request that has come from the commissioner of the
inquiry. I have listened intently to the witnesses here today and I have to say
this has been an extremely thorough process this morning. It's something that
we, as Members of the House, have been saying: a committee process works often
much better than the full House of Assembly because it allows for this back and
forth and candid testimony from expert witnesses such as yourselves.
I go
back to a comment Ms. O'Brien made that as co-counsel for this Commission you're
duty and honour bound to the public interest. I take that very seriously. I also
take very seriously the comment Mr. Learmonth made earlier that, without such an
exemption, you feel the work of the Commission will be hampered.
God
forbid, after this Commission is over, that we look back and say: We wish we had
all the information available to us so that a full and thorough airing of what
happened, why it happened and why decisions were taken to prevent it from
happening in the future – so we don't get in a position where our citizen's
electricity bills are going to double, so that good public policy can be
improved as a result of the inquiry, which I think is everyone's goal.
I think
those comments from co-counsel stuck with me, that they are duty and honour
bound to the public interest. That's why I think it's important they see all the
documents they can and they have mechanisms in place that allows for the free
flowing of documents from the parties.
The
commissioner himself, Commissioner LeBlanc, I have no reason to believe he is
acting in anything but the public interest. He's made this request of the
Commission. We're empowered to consider this and make a decision.
Mr.
Speaker, I'm moving that the Commission now vote on Mr. LeBlanc's request.
MR. SPEAKER:
Any further discussion?
Ms.
Michael?
MS. MICHAEL:
It's a request for a motion.
Somebody has to second it. I'm not seconding it.
MR. SPEAKER:
Is there a seconder to the
motion?
MR. P. DAVIS:
Who made the motion again,
Mr. Speaker?
MR. A. PARSONS:
The motion was made by Mr.
Browne. Correct?
MR. SPEAKER:
It was.
Mr.
Browne, would you repeat your motion, please.
MR. BROWNE:
Yes, I'm moving that the
Commission vote on Commissioner LeBlanc's request to grant the exemption that he
has requested in the public interest.
MR. SPEAKER:
Were you able to hear that?
MR. A. PARSONS:
Yes.
I'll
second that motion.
MR. SPEAKER:
It's been moved by Mr. Browne
and seconded by Mr. Parsons.
MS. MICHAEL:
We get discussion.
MR. SPEAKER:
Discussion on the motion?
MS. MICHAEL:
That's right.
MR. SPEAKER:
Ms. Michael.
MS. MICHAEL:
Yes, because I still have
questions. The motion may be on the floor, but we can still discuss it.
MR. SPEAKER:
Absolutely.
MS. MICHAEL:
Thank you very much.
I would
like to know from counsel – let's say the deadline was taken away. Let's say the
resources would be there for the ATIPPA requests to be taken care of, because
these are two major issues that Mr. LeBlanc has raised and you've spoken to
them.
Let's
say all of that was taken care of and time wasn't a factor, the deadline is not
there, you have the resources for staff to deal with the ATIPPA requests, et
cetera. Would Mr. LeBlanc still be saying that he required the exemption or you
as counsel require the exemption? If so, why would you still say that?
MR. SPEAKER:
Mr. Learmonth.
MR. LEARMONTH:
I would say emphatically:
Yes, we would still be looking for it, Ms. Michael. I'm more concerned – from my
own personal perspective anyway, I can't speak for the commissioner. From my own
perspective as co-counsel, I'm less concerned about the cost as I am concerned
about our ability to get access to documents, because we have to do that in
order to discharge our duties to the public. The money is something that is
important to all of us. We know that's a scarce resource now, unfortunately, and
the government is challenged in a fiscal way. But that's not my biggest reason
for urging you to give this exemption. It's because it will affect our ability
to do our job as required under the order-in-council.
MS. MICHAEL:
Thank you.
MR. SPEAKER:
Any further –?
Ms.
Michael.
MS. MICHAEL:
Yes, I would like to come
back again to the point that Mr. Davis raised early on in our discussion with
regard to the fact that this issue was brought to us, to the House of Assembly
Management Commission, as a request from the Minister of Justice made to the
Chair of the Commission, and I'm still concerned about the fact that I'm still
not convinced that it is the responsibility of the House Management Commission
to make a final decision on this, even on the temporary exemption. I need more
to say yes to that.
I don't
have the act in front of me. I hadn't thought about that until Mr. Davis spoke
to it. I don't have the House of Assembly
Accountability, Integrity and Administration Act in front of me. But we are
dealing with something which is bigger, it seems to me, than the House of
Assembly Management Commission. I could be wrong on that, but I really have a
concern.
MR. SPEAKER:
Mr. Davis.
MR. P. DAVIS:
Thank you, Mr. Speaker.
I was
waiting to speak on exactly that point. What we're being asked to do here, I
believe, is to amend a piece of legislation until the House, sometime in its
next sitting, can sit to debate and the government can bring forward an
amendment to the legislation.
I never
captured the full wording of Mr. Browne's motion, but I'd like to move an
amendment to his motion. I, again, would ask for the Chair's assistance in
having the proper wording for it. I'd ask to move an amendment to the motion to
read that Justice LeBlanc's request be brought to a sitting of the full House of
Assembly for debate and decision.
MR. SPEAKER:
Is there a seconder to the
amendment?
MS. MICHAEL:
I'll second it.
MR. P. DAVIS:
To that amendment, may I
speak to it?
MR. SPEAKER:
Yes.
MR. P. DAVIS:
(Inaudible) we've heard a lot
of discussion here this morning. It's been a very comprehensive discussion, and
I thank both of the guests for coming in and providing information; the
information they've provided to us to the best of their abilities. I thank them
for that. I acknowledge the complexities, as I've said earlier.
To Mr.
Browne's comments about our fiduciary responsibilities, we do, not only as
Management Commission Members but Members of the House of Assembly. He's pointed
out the importance of this matter and has taken some time to do that. It is very
important, and it's a complex matter.
What
we're being asked to do here is to essentially amend Schedule B of the access to
information legislation. So we're essentially amending legislation. If the House
was in session, it would be coming before the whole House, but it is a
significant matter that I think is worthy of that debate in the House of
Assembly in discussion.
I'm not
here representing anyone else or my caucus, only myself. As all Members of the
Management Commission are, we're representing ourselves. I believe it would be,
giving consideration to our responsibilities as the Management Commission in
considering the gravity and the significance of what's being asked of us here,
that the right thing to do would be to have this matter considered before the
House of Assembly, which will meet in just over three weeks' time.
Thank
you, Mr. Speaker.
MR. SPEAKER:
Mr. Browne.
MR. BROWNE:
Mr. Speaker, I'm wondering if
the Clerk can expand on her earlier comments.
It was
my understanding, and Ms. Michael is throwing this into question now. I'd like
some clarification for myself and the Members of the Commission around the
process of why this is at the Management Commission. If, in fact, Ms. Michael is
correct, that this is not the right place to address it or is it written down
somewhere that the Management Commission is to address this when the House is
not in session?
Could
you please clarify and ensure that we have a very clear answer as to whether we
have the authority to decide on this matter and if it is, in fact, the rightful
place when the House is not in session? I'd like a clear answer on that.
CLERK:
That advice is given in the
Briefing Notes that we provided.
Under
section 4 of ATIPPA 2015, it clearly states: “When the House of Assembly is not
in session, the Lieutenant-Governor in Council, on the recommendation of the
House of Assembly Management Commission, may by order amend Schedule B, but the
order shall not continue in force beyond the end of the next sitting of the
House of Assembly.”
That is
where ATIPPA directs – that's the mechanism to amend Schedule B when the House
is not sitting. Then we need to look at the legislation, the House of Assembly
Accountability, the Green act, to make sure that the Management Commission has
the authority to deal with such matters.
That is
given – if you look under the responsibilities of the Management Commission
outlined in section 20, it outlines the thrust of the Management Commission.
Section (g) specifically states: “exercise other powers given to the
commission and to perform other duties imposed on the commission under this or
another Act.”
So the clear authority for the Management Commission to
deal with this matter is there.
MR. BROWNE:
Thank you.
Mr. Speaker, I'm not done.
CLERK: If I
might; if you would like a further explanation, I would suggest we would just
take a brief recess and we could have the Law Clerk speak to you. That's an
option as well.
MR. SPEAKER: Mr.
Browne.
MR. BROWNE:
Thank you, Madam Clerk. I did read the note, that's why I was a little confused
when discussion arose of whether or not the Management Commission was the
rightful place, given the information that was provided to us by the House of
Assembly staff.
I just
want to go back to Mr. Learmonth, just to ensure that I'm clear.
The
funding allocation resource piece aside, if we were to write a cheque today for
whatever the number is and say hire the additional four staff for ATIPP, would
the commissioner still be bringing this request?
MR. LEARMONTH:
Absolutely. That would address – now, I'm not speaking for the commissioner; I
can't speak for the commissioner. I can speak as co-counsel only for myself. I
can't even speak for Ms. O'Brien.
That is
not my biggest concern. My biggest concern is ensuring that we have the ability
to do our duty here, which is to get to the bottom of the question that we've
been asked to address.
The
first question: Is it of concern to me, the finances? Yes, but if someone said:
We'll give you the finances. I'd say: Well, I'm sorry, that wouldn't satisfy my
perception of the problem. I realize others may have different perceptions on
it, but that's my heartfelt, serious problem with not having an exemption, is
the ability – I feel we'll be handcuffed, that we won't be able to do our job
within the two-year period.
MR. BROWNE:
Thank you.
Sorry,
Keith, I know –
MR. SPEAKER:
Mr. Hutchings.
MR. HUTCHINGS:
Thank you, Mr. Speaker.
Thanks,
Mr. Browne.
I just
want to reiterate a comment Mr. Browne made in regard to this exercise. I guess
having counsel come in and having a discussion on, which is a complex issue, I
think it's a great exchange. It's very beneficial to try and reach a conclusion
on what's before us here this morning.
I just
want to reference section 4 of ATIPPA, in reference to the House of Assembly
Management Commission. In the reference it may order the amendment of section B.
It doesn't say it shall; it said it may.
So that
gives discretion to the Management Commission to certainly review it and, I
guess, make a determination and/or – obviously, recognizing we're all part, the
Members are part of a 40-Member legislative body here in the province. If they
think the breadth and scope of something we're discussing here is of an
importance, or of a level that we think it should be considered by the full body
of the Legislature, I don't think that's in any way not in keeping with the
spirit and intent of the Management Commission and/or the 40-Member legislative
body that we have here in the province.
To the
issue, which I think is complex, and at this stage in terms of – as I said, it's
been a very wholesome discussion and a lot of information, it is complex. I
think at the end of the day we all want to make sure that every piece of
information that can be available is made available, and going through the
process the public has the confidence that they have access to information as
the inquiry continues on.
Now, how
we do that and how we ensure that happens; there's a debate here today in regard
to whether it's during the actual inquiry or whether there's confidence that can
be relayed to the general public that that information will be readily available
at some point in the future. Maybe that's one of the issues here, when that
point in the future is going to be and what guarantee is there that information
that the people want to know, which I want to know, which I think most Members
here want to know, what that information is and when will people see it in the
general public of Newfoundland and Labrador.
So at
this stage, I can't definitively say where I'm to with this exemption that's
been asked for. I'm very respectful of Judge LeBlanc and what he's asked for.
It's a complex issue. I certainly support the concept of – because this is a
change to the ATIPPA legislation, this amendment.
I'm
certainly very supportive of bringing it to the Legislature in the next few
weeks, or on the 26th when it opens, and having a full and wholesome discussion
in the people's House on this issue which is complex, and we'll move forward
from there.
Thank
you, Mr. Speaker.
MR. SPEAKER:
Ms. Michael.
MS. MICHAEL:
Just to add to that, we
aren't talking months. Counsel has indicated at this point in time the work
hasn't been hampered. That's my understanding. You're doing the work of getting
evidence. It hasn't been hampered, that's my understanding. If they want to
clarify that, for that reason, I see no reason for not waiting until we go into
the House of Assembly in three weeks' time.
MR. SPEAKER:
Ms. O'Brien.
MS. O'BRIEN:
Thank you.
Ms.
Michael, just to speak to that, if you look at the commissioner's letter, in the
last paragraph of his letter he wrote: “There is much urgency to this request.”
The commissioner was very aware of when the House would be speaking and he was
very concerned that a decision be made on this as soon as possible.
While we
have not been hampered to date – we have not received an ATIPP request to date –
we expect that if this matter is to wait even a matter of weeks that we will be
affected. That is why he specifically came to the Management Commission and
requested this body to make the recommendation to the Lieutenant Governor.
MS. MICHAEL:
Thank you.
MR. SPEAKER:
Any further?
Mr.
Browne.
MR. BROWNE:
No.
Ms.
O'Brien, could you answer this question for me? Should we grant an exemption, it
would have to come to the House of Assembly within the next session – am I
correct in saying that – with a formal amendment from the Lieutenant Governor in
Council? Is that how it works?
MS. MICHAEL:
Only for extension.
MR. SPEAKER:
Ms. O'Brien.
MS. O'BRIEN:
Your own resources may be able to speak better to this. My understanding is any
order that would ultimately be granted is a temporary order and would expire at
the conclusion of the next sitting of the House of Assembly.
MS. COADY:
Mr. Speaker?
MR. SPEAKER:
Yes.
Ms.
O'Brien, go ahead.
MS. O'BRIEN:
I understand that the reason being would be so that the matter could come again
before the House of Assembly while it is sitting so they could make a
determination on the matter.
MR. SPEAKER:
Thank you, Ms. O'Brien.
Ms.
Coady.
MS. COADY:
I understand, Mr. Speaker,
this would have to come to the House and it would likely be very early in the
session.
MR. SPEAKER:
Thank you.
Ms.
Michael.
MS. MICHAEL:
Just to get clarification –
because of the legislative impact – in order to continue the exemption beyond
May 31 there would have to be an amendment to the act, but this exemption can go
right up until May 31. Correct?
Is Ms.
Coady making a commitment on behalf of the LG in Council that, in actual fact,
they're going to be dealing with this immediately when we go into the House?
That was
a question for Ms. Coady, Mr. Speaker.
MR. SPEAKER:
Ms. Coady, were you able to
hear that question?
MS. COADY:
Yes, thank you.
Sorry, I
had the phone on mute. My understanding is that it will be coming to the House.
The House Leader is on the line as well. I understand it will be coming to the
House, possibly very early in the session.
House
Leader, would you like to comment?
MR. A. PARSONS:
Yes, that's my understanding
as well. I have no issue trying to have this dealt with as soon as possible
within the House.
MR. SPEAKER:
Any further discussion?
There is
a motion and an amendment on the floor. The motion was to recommend to the LGIC
that the Commission of Inquiry on the Muskrat Falls Project be exempted from the
Access to Information and Protection of
Privacy Act in accordance with section 4 of that act.
There is
an amendment and we have to vote on the amendment prior to the other motion. I
think the amendment just asks that we consider, in lieu of the original moving –
was that we would consider it being discussed at the sitting of the full House.
MS. COADY:
For clarity, is the amendment
to the motion that this be deferred to the full House or that we would vote on
this now giving temporary access to the exemption? Then, further, it would go to
the House of Assembly following the same?
MR. SPEAKER:
My understanding of the
amendment is that we would defer it to the full House. Mr. Davis, you can
correct me if I'm wrong on that. That's correct?
Mr.
Davis on a point –
CLERK:
May I be –
MR. SPEAKER:
Oh.
CLERK:
I just want to be clear now
because the options outlined in the note are either to recommend to the LGIC
that the inquiry be exempted or do not recommend to the Commission of Inquiry.
MR. SPEAKER:
Mr. Davis, on a point.
MR. P. DAVIS:
It's very important that we
clearly understand what it is we're voting on. Mr. Browne's motion, as I
understood, was that the Management Commission vote to accept and provide the
exemption requested by Justice LeBlanc. That's what I understood.
MR. SPEAKER:
That's correct.
MR. P. DAVIS:
My amendment to the motion
was that the vote be brought to the full House of Assembly for a decision.
MR. HUTCHINGS:
We're not denying the
request.
MR. P. DAVIS:
We're not denying the
request. Our amendment is that the decision not be made here by the Management
Commission, but brought to the full House.
I do
want to close debate when we get to that point.
CLERK:
You want to amend the – that
basically the Management Commission defer the consideration to the General
Assembly. I just want to be sure I have an understanding.
MR. P. DAVIS:
Yes.
CLERK:
Just for clarification
purposes – it did come up; I think Ms. Michael and Mr. Browne had discussed it.
If the exemption is granted by the Management Commission – not granted. If the
Management Commission recommends the exemption – it's actually granted by the
Lieutenant Governor in Council by an order – then that order would stay in place
until an amendment goes through the House and Royal Assent is given.
We would
expect at that time, if there was an order in place, the order would be
rescinded and the act would replace it, the amendment to the act. Am I being
clear there?
AN HON. MEMBER:
Yes.
MR. P. DAVIS:
No.
CLERK:
For example, if there was an
exemption granted by the Lieutenant – if there was a recommendation to grant the
exemption and government chose not to bring in an amendment, that's when it
would actually expire at the end of the sitting.
So there
has to be some intervention for it to continue. I just wanted to make sure
that's clear with everyone.
MR. SPEAKER:
Mr. Browne.
MR. BROWNE:
Can we get a clear ruling on whether the amendment, as proposed, is in order to
be accepted as an amendment?
CLERK:
Well, I mean it's not quite
the same as in the House. Bobbi is going to write it out now.
MR. P. DAVIS:
Can we take a recess for a
few minutes, Mr. Speaker?
MR. SPEAKER:
Sure.
MR. P. DAVIS:
Maybe take a 10-minute
recess.
CLERK:
We'll get the wording of the
amendment, okay?
MR. SPEAKER:
It's been recommended that we
take a 10-minute recess.
Thank
you.
Recess
MR. SPEAKER:
Okay, we'll reconvene our sitting.
Just
prior to our recess we were considering the amendment to the recommendations.
I've considered the amendment and the amendment is not in order, which leads us
back to the motion made by Mr. Browne, the motion –
CLERK:
Recommend to.
MR. SPEAKER:
Yes.
Recommend to the LGIC that the Commission of Inquiry on the Muskrat Falls
Project be exempted from the Access to
Information and Protection of Privacy Act, 2015, in accordance with section
4 of that act.
Before I
ask for that motion to go to the Table, I just want to make sure that Mr.
Parsons and Ms. Coady are on the line and if you have heard everything to date.
MS. COADY:
Yes, thank you.
I'm
ready for the question.
MR. A. PARSONS:
Same here.
MR. SPEAKER:
Ms. Michael.
MS. MICHAEL:
Yes.
I thank
counsel for coming back in after the recess. I do want to get a couple of things
further clarified.
In the
electronic email, the message that came initially from Mr. LeBlanc on December
21, he says – it's the third sentence in his second paragraph: “We are in no way
seeking exemption with regard to administration or finances with regard to the
ongoing Inquiry. We are seeking the type of exemption that is permitted with
regard to investigative bodies that provide a privilege so that the Commission
staff can appropriately and effectually investigate the matters required under
the Terms of Reference.”
I'd like
a definition or clarity around what is meant by: not seeking exemption with
regard to finances with regard to the ongoing inquiry.
MS. O'BRIEN:
I can answer that, Ms. Michael.
Certainly, when the commissioner first drafted that letter on December 21, he
was not aware whether there could be a partial or full exemption under ATIPPA.
His concern was really for the investigative part of our work, as set out in
letter.
We
understand now that we really have to be in or out. That's the way it works.
There's no ability to do a partial exemption. However, the commissioner is
incredibly dedicated to transparency and if you look at the FAQ, the frequently
asked questions section of our website, you will see that he's already committed
there that there will be regular updates, fiscal updates to the public as to how
much money the Commission has spent to date, details on what it spent it on and
so forth.
He wants
the Commission's internal processes to be very transparent to the public so they
know what their money is being spent on and how.
MS. MICHAEL:
So it has no meaning with
regard to finance questions with regard to the project. It's in terms of the
inquiry itself?
MS. O'BRIEN:
Exactly.
MS. MICHAEL:
That's right. I thought that,
but I just wanted to be certain that's what it meant.
MS. O'BRIEN:
Thank you.
MS. MICHAEL:
Just one other question; it
comes to the solicitor-client issue. What gets defined as solicitor-client?
That's a really broad question. The Supreme Court has dealt with it, but I'll be
a bit clearer for you. Is it only the documentation that is actually between the
solicitor and the client? If there's documentation outside like financial
records and that kind of thing, which is the running of the company, that would
or would not be solicitor-client?
MR. LEARMONTH:
Can I answer that, Mr. Speaker?
MR. SPEAKER:
Absolutely, Mr. Learmonth.
MR. LEARMONTH:
Solicitor-client privilege generally is – the law protects the disclosure of
advice obtained from a lawyer to a client. The client can waive the claim to
privilege if the client decides to do so, but it's advised – so when a lawyer is
advising a client, that communication is privileged if the client claims the
privilege.
The law
on the solicitor-client privilege is very complex. There are all kinds of cases
in the Supreme Court of Canada and in the appeal courts of all the provinces.
It's the type of thing that you think you get a decision from the Supreme Court
that will settle the matter and then the next thing you know there's another
part going to the Supreme Court. So it's a very complex area of the law.
MS. MICHAEL:
Okay.
MR. LEARMONTH:
It has to do generally with advice given by lawyer to his or her client.
MS. MICHAEL:
Thank you.
MR. SPEAKER:
Any further questions to the
motion?
Hearing
none, I'll ask the question.
All
those in favour of the motion?
SOME HON. MEMBERS:
Aye.
MR. SPEAKER:
All those against, ‘nay.'
SOME HON. MEMBERS:
Nay.
MR. SPEAKER:
Okay, given the fact that we
have a Commission of six and three have voted in favour of the motion and three
have voted against, do not recommend the motion, it will come down to a – I get
an opportunity, as Chair of this Commission, to vote. I vote in favour of the
motion.
I
consider the motion to be passed.
Any
further discussion?
MS. MICHAEL:
Yes.
MR. SPEAKER:
Ms. Michael.
MS. MICHAEL:
Just to thank counsel of the
inquiry for being here with us today and giving us very clear answers. I
appreciate what I've learned from you.
MR. SPEAKER:
Sorry, Mr. Learmonth.
MR. LEARMONTH:
I can't speak for Ms. O'Brien, she'll speak for herself of course, but I
appreciate the fact that you saw fit to allow us to come in and answer your
questions. I know some of the questions we were unable to answer with clarity,
but we did our best and we appreciate being part of this process.
MR. SPEAKER:
Anything further?
Again, I
certainly want to add my comments, as well, as Chairing my first Management
Commission meeting. I certainly appreciate the attendance of co-counsel, Ms.
O'Brien and Mr. Learmonth. I certainly appreciate your attendance, appreciate
your expertise. As I do, and all Members of the Commission, thank the two
ministers for tuning in as well.
I would
entertain a motion for adjournment.
MR. HUTCHINGS:
So moved.
MR. SPEAKER:
So moved by Mr. Hutchings;
seconded by Mr. Davis.
Motion
carried.
AN HON. MEMBER:
Thank you.
MS. COADY:
Thank you.
MR. SPEAKER:
Thank you.
On
motion, meeting adjourned.