INTRODUCTION INCONSISTENT

According to the Office of the Auditor General of Canada (OAG), a “Governor in Council (GIC) appointment is an appointment made on the recommendation of the responsible minister and approved by the Governor in Council.”[1] The term “Governor in Council” refers to the “Governor General, acting on the advice of Cabinet, as the formal executive body that gives legal effect to those decisions of Cabinet that are to have the force of law.”[2]

“The government appoints heads and members to tribunals that regulate an area of law or render judgments on the legal rights of individuals in specific areas of the law. In some cases, tribunals provide a forum for individuals to appeal decisions made by the government.”[3] Therefore, the OAG is of the opinion that full and part-time GIC appointments to such tribunals are important responsibilities of government.[4]

In 2009, the OAG “undertook an audit of the GIC appointment process to determine if procedures were in place for the timely appointment of qualified individuals” for selected Crown corporations, small entities, and the Immigration and Refugee Board of Canada.[5] That audit found that although steps were taken to improve transparency, lengthy delays remained for appointments to small entities and to the Board.[6] Moreover, the appointment process and its results were not adequately communicated to both the entities and individuals involved; at the Board, the OAG found “that vacancies contributed to an increase in backlogged cases.”[7]

Lastly, the 2009 audit also found a lack of evidence “that selection criteria were established for positions and that reference checks were conducted on appointees for entities other than the Board.”[8]

In response to the recommendations made by the House of Commons Standing Committee on Public Accounts (the Committee) stemming from the OAG’s 2009 audit, the Clerk of the Privy Council proposed a six-point plan. The plan aimed to:

• develop guidance on the appointment process;
• improve the management of vacancies;
• better plan for upcoming vacancies;
• increase transparency and access to the GIC appointment process;
• increase the rigour of the appointment process; and
• enhance training and orientation for stakeholders and appointees.[9]

According to the OAG, “the passing of the Federal Accountability Act in 2006 provided for the establishment of a Public Appointments Commission.”[10] The Privy Council Office (PCO) stated that the Commission would be guided by a Code of Practice. Later, the Commission “was formally eliminated in the 2012 budget” and, ultimately, the Code was never developed.[11]

In the Spring of 2016, the OAG released a performance audit to “determine whether timely appointments of qualified individuals were being made to selected administrative tribunals to maintain continuity of service.” The 2016 audit also “assessed progress on some of the areas for improvement identified in [the] 2009 audit of the appointment process. These included guidance provided by the [PCO], the number and length of vacancies, and communication to appointees concerning their reappointment.”[12] However, it should be noted that the OAG “did not audit the appointment decisions or the roles played by ministers, ministers’ offices, or the Office of the Prime Minister.”[13]

On 17 November 2016, the Committee held a hearing on this performance audit.[14] In attendance, from the OAG, were Michael Ferguson, Auditor General of Canada, and Sharon Clark, Principal. The Privy Council Office was represented by Janine Sherman, Deputy Secretary to the Cabinet, Senior Personnel and Public Service Renewal, and Donnalyn McClymont, Assistant Secretary to the Cabinet Senior Personnel Secretariat. Indigenous and Northern Affairs Canada was represented by David Dendooven, Corporate Secretary, and Stephen Gagnon, Director General, Specific Claims Branch. Finally, Jean Cintrat, Director General, Cabinet and Parliamentary Affairs and Executive Services Directorate appeared on behalf of Public Safety Canada; and, Shelley Dooher, Corporate secretary, appeared on behalf of Innovation, Science and Economic Development Canada.[15]

According to Michael Ferguson, Auditor General of Canada, this audit is important because:

[The] administrative tribunals regulate specific areas of the law or provide individuals with a way to appeal the government's decisions, such as those on immigration status or [First Nations] claims. Appointments to these tribunals must be timely to ensure that the tribunals can carry out their work. Appointees must also have the right background and experience to carry out their roles effectively.[16]

Table 1 provides information about the four tribunals that were the subject of the OAG’s detailed analysis in the 2016 audit.

Table 1 – Characteristics of Four Selected Administrative Tribunals

Tribunal	Mandate	Operating budget in the 2014-2015 fiscal year	Current complement of Govenor in Council appointees	Responsible minister
Immigration and Refugee Board of Canada	Immigration Appeal Division: Decisions on appeals related to immigration decisions made by the government, onmatters such as refused family sponsorship applications, removal orders requiring people to leave Canada, or residency obligation decisions. Refugee Appeal Division: Decisions on appeals related to denial of refugee protection (for individuals whose requests to be granted refugee status in Canada have been denied). (Note that decisionsregarding refugee protection claims are made by a seperate division, staffed by public servants.)	$121 million	65 full-time members	Immigration, Refugees and Citizenship Canada (formerly Citizenship and Immigration Canada)
Specific Claims Tribunal Canada	decisions on First Nations historic claims against the Crown relating to reserve lands, other assets, and unfulfilled Treaty promises, with authority to decide compensation of up to $150 million.	$3 million	1 full-time judge and 2 part-time judges (equivalent to 2 full-time judges in total)	Indigenous and Northern Affairs Canada (formerly known Aboriginal Affairs and Northern Development Canada)
Competition Tribunal	Decisions on matters such as corporate mergers, misleading advertising, and restrictive trade practices that are investigated by the Competition Bureau.	$2 million	3 part-time judges, 7 part-time lay members	Innovation, Science and Economic Development Canada (formerly Industry Canada)
Civilian Review and Complaints Commission for the RCMP	Investigations of complaints from the public regarding the conduct of RCMP members.	$10 million	1 full-time and 1 part-time member	Public Safety Canada

Source:   Office of the Auditor General of Canada, “Report 3—The Governor in Council Appointment Process in Administrative Tribunals,” Spring 2016 Reports of the Auditor General of Canada, Exhibit 3.1.

According to the OAG:

[The PCO], on behalf of the Prime Minister, is responsible for establishing and administering policies and services that promote high-quality [GIC] appointments. Specifically, for tribunal chairs and all other full-time appointees, PCO receives applications, evaluates candidates, and manages and participates in the interview process. For part-time appointments, PCO is not responsible for the selection process. PCO is also not responsible for selection processes in tribunals where the responsible Minister has been delegated by the Prime Minister the authority to conduct his or her own selection processes, such as the Immigration and Refugee Board of Canada.[17]

Tribunals that include members who are sitting judges require recommendations for membership from several stakeholders, such as the Minister of Justice, along with the chief justices of the superior courts and the Federal Court.[18]

SUPPORT FOR THE GOVERNOR IN COUNCIL APPOINTMENT PROCESS

Following the 2009 audit, PCO committed to the Committee that it would improve its guidance on the appointment process.[19] Later that year, PCO issued its Guide to Managing the Governor in Council Appointments Process, which includes information for government stakeholders about the appointment process.[20] However, according to the OAG, this guide is not available on the PCO website, making it challenging for stakeholders—including ministers’ offices, departments, tribunals, and potential appointees—to access the guidance therein.[21] Mr. Ferguson also testified that the “guidance also didn't address exceptions to the process, such as the appointment of judges to tribunals.”[22]

According to the OAG, the Guide outlines the following:

• [S]election processes for all appointments must be accessible, competency-based, and transparent. These processes must include the development of selection criteria that reflect the specific nature of the position and the weight of its responsibilities.

• […]

• Ministers (not the Privy Council Office) are responsible for making recommendations for all GIC appointments. Ministers are also responsible for managing vacancies for the tribunals within their portfolios, for ensuring appointments are made in a timely manner, for carrying out consultations with tribunal chairs on the skills and qualifications needed to fill vacancies, and for making appointment recommendations to the Governor in Council.
• The Office of the Prime Minister is responsible for consulting with responsible ministers’ offices on all appointment-related issues and for coordinating the GIC appointment process.
• Portfolio departments are responsible for working with the Privy Council Office to develop selection criteria and notices of vacancy.[23]

The Guide also notes that sufficient time must be allowed for selection in cases in which an incumbent appointee is not to be reappointed. In 2009, the OAG noted the lack of a standard time period for “notifying appointees of reappointment decisions.”[24] This issue is addressed in the Guide with the requirement that “for tribunal chairs or other full-time members, ‘decisions on reappointment must be made at least six months before the end of a public office holder’s term of office.’”[25] For part-time members, these decisions must be made at least three months prior to the end of their term.[26]

During the 2016 audit, the OAG learned that the guidance was not applied across the federal government.[27] For example, regarding the appointment of judges to the Specific Claims Tribunal Canada and the Competition Tribunal, Department of Justice Canada officials told the OAG:

[T]hat sitting judges in superior courts are subject to a separate, rigorous selection process when they are appointed as judges and that this process precludes the need to apply the rules, procedures, and processes that apply to other GIC appointees. This is not evident in PCO’s Guide.[28]

On this point, Janine Sherman, Deputy Secretary to the Cabinet, Senior Personnel and Public Service Renewal, PCO, told the Committee that the Right Honourable Justin Trudeau, Prime Minister of Canada, announced a new policy for Governor in Council appointments on 25 February 2016,[29] and further added the following:

Since the February announcement, we have undertaken a number of communication, outreach and information sharing initiatives. We held information sessions, in collaboration with the Prime Minister's Office, to provide guidance, information, and tools to departments and organizations and all ministerial office staff involved in supporting their ministers on the Governor in Council appointments. We will continue to collaborate and discuss best practices with these key stakeholders.[30]

In light of these findings, the OAG recommended that PCO, in consultation with portfolio departments and tribunals, “indicate in its guidance whether there are any exceptions to the process requirements, such as the appointment of judges to tribunals.”[31] The OAG also recommended that PCO “post its guidance in a central location so that all stakeholders can easily find and access the guidance.”[32]

PCO agreed with both of these recommendations. In its action plan, PCO stated that in the Spring of 2016, it had provided five “information sessions about the [2016] GIC Appointments policy, including exemptions from the requirement for an open selection process, to portfolio departments, organizations and ministers’ offices.”[33] Furthermore, PCO stated that, starting in the Spring of 2016:

Positions subject to different selection processes will be identified and guidance to public servants in the responsible organizations will be provided.

PCO [will] continue to consult with, and provide guidance to portfolio departments, organizations and ministers’ offices on procedures for selection processes to fill positions under the new policy approach to GIC appointments.[34]

Additionally, PCO committed to posting its guidance in two central locations:

• A public portal / central online repository of guidance, information and updates on the new GIC appointments policy for user-friendly access by stakeholders (i.e., portfolio departments and organizations and ministers’ offices; and the public at large).
• An internal portal / central repository on GC-CONNEX for use by departmental and ministers’ office staff responsible for supporting the GIC appointments process.^[35]

Notwithstanding these changes and commitments, the Committee recommends:

Recommendation 1

That, no longer than 120 days after the tabling of this report, the Privy Council Office provide the House of Commons Standing Committee on Public Accounts with a report outlining how it has improved the provision of, and access to, guidance regarding Governor in Council appointments.

VACANCIES IN ADMINISTRATIVE TRIBUNALS

The OAG examined vacancies (and their impact) in the four selected tribunals, and found that the number and length of GIC vacancies were “significant” (see Table 2 below).

Tribunal	Current Governor in Council vacancies (based on needs expressed by tribunals)	Average length of Governor in Council vacancies
Immigration and Refugee Board of Canada	21 out of 86 (excluding the chair)	9 months**
Specific Claims Tribunal Canada	2 out of 4	17 months*
Cmpetition Tribunal	4 out of 14	20 months**
Civilian Review and Complaints Commission for the RCMP	0 out of 2	7 months**
* Positions still vacant ** Average length of vacancy for positions that were vacant and filled during our audit period

Source:   Office of the Auditor General of Canada, “Report 3—The Governor in Council Appointment Process in Administrative Tribunals,” Spring 2016 Reports of the Auditor General of Canada, Exhibit 3.2.

The OAG noted that, regarding the vacancy rate of 21 out of 86 members for the Immigration and Refugee Board of Canada, Board officials explained that this was due to the anticipation of a reduced workload in certain areas after a period of time.[36]

However, the reallocating of resources from one division to another “allowed a backlog to build up in the Immigration Appeal Division. The shortage of members was one factor that contributed to a caseload of close to 11,000 outstanding immigration appeals, with an average of 18 months to process each appeal.”^[37] This was significantly longer than the average 10-month processing time that the OAG reported in its 2009 audit.[38] “Delays in processing appeals may have impacts such as creating uncertainty for appellants and their families.”[39]

In 2015, the Board changed the appeals process to address the backlog, and filled vacancies; thus, by the end of this audit, “the Immigration Appeal Division had begun to reduce the number of outstanding appeals.”[40]

With respect to the Specific Claims Tribunal Canada, no appointment was made between 2012 and the end of the audit period (November 2015). Afterwards, Tribunal officials informed the OAG that vacancies have resulted in “further delays in addressing First Nations claims in a timely manner.”[41]

The vacancies at the Competition Tribunal have resulted in hearings having to be scheduled far in advance to provide the Tribunal with sufficient preparation time; however, according to the OAG, this could contravene the Competition Tribunal Act, which “requires that proceedings be dealt with as expeditiously as possible.”[42] The “delays in appointing judicial and lay members could affect the Tribunal’s ability to meet this requirement, resulting in potential financial impacts on businesses and consumers.”[43]

In the case of the Civilian Review and Complaints Commission for the RCMP, although there were no vacancies, “the former part-time vice-chair acted as chair for four years before being appointed as chair,” due to the fact that the “appointment as full-time chair depended on the passing of new legislation in November 2014 that gave the Commission expanded powers for investigation and called for a full-time chair position.”[44] According to the OAG, because this member was both the interim chair and vice-chair, this situation “put at risk the Commission’s ability to carry out its mandate in the event he was unable to perform his duties.”[45]

Overall, the OAG noted the following:

Despite efforts to improve the management of vacancies introduced since our audit in 2009, our findings point to ongoing delays in filling GIC positions. These delays affected the operations of the tribunals, which in turn have had an impact on individuals.[46]

And, when questioned as to whether this situation had improved or worsened since 2009, Mr. Ferguson replied that overall, the OAG was “disappointed with the extent of the vacancies that still existed and the impact they were having on some very important decisions.”[47]

Therefore, the OAG recommended that Innovation, Science and Economic Development Canada (ISED), Indigenous and Northern Affairs Canada, and Public Safety Canada “work with ministers, as well as tribunals, as early as possible to fill Governor in Council positions, in order to support continuity of operations.”[48]

In response to this recommendation:

• ISED stated in its action plan that it is “working with the Minister’s office, the Privy Council Office, and the Competition Tribunal to launch a timely GIC selection process for lay members in accordance with the [2016] appointments policy.”[49]
• Indigenous and Northern Affairs Canada stated in its action plan that it will not advise the Minister regarding appointments to the Specific Claims Tribunal, but that the “Corporate Secretariat (Ministerial Planning and Co-ordination Unit) within Indigenous and Northern Affairs Canada will continue to record the names and terms of Tribunal members and will share with the Minister’s Office on a regular basis.”[50]  
• Public Safety Canada stated in its action plan that it had implemented the 2016 GIC appointment process as well as an effective tracking system for appointments to the Civilian Review and Complaints Commission, and that by the Spring of 2017, “Departmental guidelines will be created and will outline the new GIC appointment approach and internal procedures to be used to support it.”[51]

Questioned about the causes of the delays in making GIC appointments, officials from PCO and the departments responded that they are fulfilling their responsibilities, and that it is up to the Governor in Council to make decisions on appointments to administrative tribunals.[52]

The Committee is not satisfied with this response because it suggests that no one would be currently accountable for the timeliness of GIC appointments to administrative tribunals.[53] However, as stated previously, the OAG noted in the audit that according to PCO’s Guide to Managing the Governor in Council Appointments Process, Ministers are responsible “for managing vacancies for the tribunals within their portfolios” and “for ensuring appointments are made in a timely manner.”[54]

In light of the audit’s findings, the action plans, and the testimony, the Committee is of the opinion that, without improvements to the current process, there will continue to be delays in making GIC appointments to administrative tribunals. For this reason, the Committee recommends:

Recommendation 2

That, no later than 120 days after the tabling of this report, the Privy Council Office, in collaboration with departments and tribunals, explain to the House of Commons Standing Committee on Public Accounts how it will improve the timeliness of the Governor in Council appointment process in administrative tribunals.

When questioned if there were specific problems with regard to appointing sufficient members to the Competition Tribunal, Shelley Dooher, Corporate Secretary, ISED, provided the following:

With respect to the Competition Tribunal, it's important to know that the legislation calls for a set number of judicial and lay members, up to a maximum. It doesn't mean they all have to be in place all the time because it really depends on workload. I would say a couple of things. As far as I know, and I've only been in my position since December 2015, to the best of my knowledge the tribunal was able to deal with its workload.  

There's one thing that might be missing from the dialogue today. One of the important things that PCO has put in place when we look at these new processes for lay members is that we're allowed to do larger competitive processes and establish pools of candidates, and to draw from that pool over a period of time. That really allows us far more flexibility when we're speaking about a need that could arise quickly because the workload changes, and we already have a qualified group of people.[55]

In contrast, David Dendooven, Corporate Secretary, Indigenous and Northern Affairs Canada, explained some of the complexities involved regarding protecting the independence of the Specific Claims Tribunal:

In terms of the Department (…), the unit responsible for appointments ensures that the work is done effectively. As a result of the Auditor General's review of the tribunal, we have reassessed our processes to ensure that we respect its independence and that we cannot be accused of interfering with the candidates whom the Minister of Justice recommends to the Governor in Council.[56]

It should also be noted that when questioned about how these types of vacancies can be mitigated in the future, Michael Ferguson stated that one key consideration is succession planning:

Unfortunately, it seems that everything is focused on the end of the process. What I mean by that is, and maybe I have this wrong, but it's certainly the way I perceive it, when there's a vacancy, there's this process to try to identify who we might be able to pull out of the sitting judges to sit on a tribunal. I think it sounds much more like a classic case of succession planning, so that when judges are appointed in the first place having a bit of an idea of when there might be vacancies on tribunals and which judges might be in the pool they can draw from.[57]

Furthermore, if departments and tribunals are better trained for succession planning, it might help to better identify vacancies before they become problematic and lead to delays in decision-making.

Therefore, the Committee recommends:

Recommendation 3

That, no later than 120 days after the tabling of this report, the Privy Council Office develop methods to help departments and administrative tribunals better incorporate succession planning for Governor in Council appointments to administrative tribunals.

PROCESS TO PROMOTE HIGH-QUALITY APPOINTMENTS AND ORIENTATION AND TRAINING FOR APPOINTEES

According to the OAG, the selection processes “for full-time appointees were well documented, but those for part-time appointees were not transparent.”[58] Furthermore, the OAG found that there are several “types of relevant training to orient new chairs to government policies and procedures and their accountabilities as leaders of administrative tribunals,” but “one quarter of the chairs did not attend any of the training offered” by PCO or the Canada School of Public Service.[59]

Notwithstanding these findings, the OAG made no recommendations with regard to either the process to promote high-quality appointments or orientation and training for appointees. However, the Committee believes that orientation and training is crucial to help ensure that new appointees understand the “roles and responsibilities of public office holders, the legal framework and values and ethics requirements, and the functioning of the federal government and the respective tribunal itself.”[60] Therefore, the Committee recommends the following:

Recommendation 4

That, no later than 120 days after the tabling of this report, the Privy Council Office consider making orientation and training mandatory for new appointees to administrative tribunals.

CONCLUSION

The OAG concluded that there continues to be delays with regard to GIC appointments of qualified individuals to selected administrative tribunals, in some cases for long periods. Consequently, these delays affect individual Canadians and other stakeholders. “While the Privy Council Office has issued guidance on the appointment process, this guidance is not available on its website and does not address all types of appointments or explain any exceptions to the process, such as the appointment of judges to tribunals.”[61]

The OAG also concluded that “while most selection processes are open and transparent, there was no evidence that part-time appointees were evaluated against established criteria to support qualified appointments.”[62] According to the OAG, “this runs counter to the PCO’s requirement for accessible, competency-based, and transparent selection processes for all appointments.”[63]

The Committee will monitor PCO’s response to its four recommendations in order to ensure that the accountability for the timeliness of GIC appointments is clarified, and that the departments and the administrative tribunals receive more support, clearer guidance, orientation and training, and help with succession planning.

SUMMARY OF RECOMMENDED ACTIONS AND ASSOCIATED DEADLINES

Table 3 – Summary of Recommended Actions and Associated Deadlines

Recommendation	Recommended Action	Deadline
Recommendation 1 (p. 7)	The Privy Council Office (PCO) needs to provide the Committee with a report outlining how it has improved the provision of, and access to, guidance regarding Governor in Council appointments.	No later than 120 days after the tabling of this report
Recommendation 2 (p. 11)	PCO, in collaboration with departments and tribunals, needs to explain to the Committee how it will improve the timeliness of the Governor in Council appointment process to in administrative tribunals.	No later than 120 days after the tabling of this report
Recommendation 3 (p. 12)	PCO needs to develop methods to help departments and administrative tribunals better incorporate succession planning for Governor in Council appointments to administrative tribunals.	No later than 120 days after the tabling of this report
Recommendation 4 (p. 12)	PCO needs to consider making orientation and training mandatory for new appointees to administrative tribunals.	No later than 120 days after the tabling of this report