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Under the Influence: Ministers (And Others) Communicating With Tribunals

Members of Parliament are expected to advocate for their constituents. However, when that MP is a Minister of the Crown (or a Parliamentary Secretary) there are limits on how far that advocacy can go.

Interference by a Minister in a particular case before a tribunal has long been considered as an inappropriate interference with tribunal independence. This self-evident rule of non-interference was recognized in a document prepared by the federal government in 2015: Open and Accountable Government: “Ministers must not intervene, or appear to intervene, with tribunals on any matter requiring a decision in their quasi-judicial capacity, except as permitted by statute”.

The federal Conflict of Interest Act prohibits a public officer holder, which includes a Minister or Parliamentary Secretary, from using their position “to seek to influence a decision of another person so as to further the public office holder’s private interests or those of the public office holder’s relatives or friends or to improperly further another person’s private interests” (section 9).

The federal Conflict of Interest and Ethics Commissioner has prepared a guideline document that sets out the parameters of the interaction of a Minister or Parliamentary Secretary with a federal administrative tribunal:

You and your staff may assist constituents by explaining an administrative tribunal’s processes or by providing them with relevant contact information.

However, you must not under any circumstances attempt to intervene in the decision-making process of an administrative tribunal on behalf of any constituent in any riding, or to expedite the processing of an application. Such contact may be considered an attempt to influence a decision, which is a breach of section 9 of the Act.

All the reports and compliance orders issued by the Commissioner’s office have related to improper communication with the Canadian Radio-Television Commission (CRTC). The most recent report is about a letter sent by Greg Fergus, parliamentary secretary to the Prime Minister and to the President of the Treasury Board. He is also a Member of Parliament for Hull-Alymer. He sent a letter of support for an application to the CRTC of Natyf Inc., a Quebec broadcaster. Natyf wanted its television service to be granted mandatory distribution on the digital basic service in Quebec. The Commissioner summarized the nature of Natyf’s application:

In their application, Natyf Inc. emphasized that mandatory distribution is vital for the operation of their services as a means of reaching underserved racialized communities as well as bringing about the emergence of a new generation of Francophone creators to launch their careers in the French-language market.

Mr. Fergus knew one of the directors of Natyf, but only on a professional basis. He met the director, at the director’s request, to discuss Natyf’s application with the CRTC and to obtain a letter of support. Mr. Fergus stated that this request for a letter of support was made, in part, because of Mr. Fergus’ role at that time as Chair of the Parliamentary Black Caucus. Among other roles, the Parliamentary Black Caucus provides Black Canadians, including Black Canadian business owners, with the opportunity to engage with parliamentarians on issues of importance to their community.

After the meeting, emails were exchanged between the director and Mr. Fergus’ office on the proposed language for a letter of support. Mr. Fergus then approved and signed the letter on his Member of Parliament letterhead. The letter was a general letter that encouraged the CRTC to consider Natyf’s application and included the CRTC’s reference number for the application. This letter was provided to the director electronically by Mr. Fergus’ office.

Representatives of Natyf then submitted Mr. Fergus’ letter to the CRTC. The CRTC acknowledged receipt of the letter by way of an automated message sent to Mr. Fergus’ parliamentary email address.

After receiving an inquiry from the media about his support, Mr. Fergus contacted the Commissioner’s office. In his communication with the Commissioner, Mr. Fergus “recognized his unintentional error” in providing a letter of support and stated that he was “deeply sorry for his action”. The Commissioner found that Mr. Fergus had contravened section 9 of the Conflict of Interest Act.

Ten years ago, the former Commissioner commented on cases involving parliamentary secretaries contacting the CRTC. She noted that the CRTC was meant to operate at arm’s length from the government with respect to decision-making and it was therefore improper for parliamentary secretaries to write letters of support.

In 2016, the former Commissioner issued a report — the Gill Report – with similar conclusions on the impropriety of a parliamentary secretary contacting the CRTC. The Commissioner concluded:

It has long been understood that it would be improper for a minister to seek to influence an administrative tribunal (also sometimes referred to as a quasi-judicial tribunal) in relation to any matter before it. I am of the view that the same considerations that apply to ministers concerning their actions with respect to administrative tribunals must also apply to parliamentary secretaries.

Commissioner Dion is quoted in a press release accompanying the Fergus report:

Being dual-hatted does n​ot mean Mr. Fergus can circumvent the rules of the Act by simply wearing his MP hat to sign a letter of support to an administrative tribunal. Ministers and parliamentary secretaries may help their constituents deal with an administrative tribunal in very limited instances, such as explaining the tribunal’s processes or giving them its contact information.

Given his years of experience and his position in government, Mr. Fergus should have been aware of these rules and should have sought advice from this Office before writing the letter.

As a parliamentary secretary since 2015 and having served for several years on both the Standing Committee on Access to Information, Privacy and Ethics and the Standing Committee on Procedure and House Affairs, Mr. Fergus should be well versed on the functioning of both regimes and the importance of consulting the Office. I am quite concerned that someone with the breadth of experience of Mr. Fergus would fail to recognize the possibility of a contravention.

The retiring Commissioner Dion expressed some frustration in that press release, noting that senior officials have been unaware of their obligations under the conflict of interest regime. He recommended mandatory training on conflict of interest obligations for all ministers and parliamentary secretaries.

This recent report is a reminder to all tribunals to be vigilant about interference in ongoing cases – whether intentional or not – from Ministers, Parliamentary Secretaries, or anyone acting on their behalf. It is also a reminder to all within the administrative justice community of the necessity for education and training on the importance of tribunal independence. What is self-evident to administrative justice practitioners is clearly not as self-evident to others.

Comments

  1. Was there a reprimand or other consequence for Mr. Fergus’s breach?

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