STANDING COMMITTEE ON GENERAL GOVERNMENT
Thursday 21 November 2002 Jeudi 21 novembre 2002
SUSTAINABLE WATER AND SEWAGE SYSTEMS ACT, 2002
SAFE DRINKING WATER ACT, 2002
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Chair: Our final presentation in the morning session will be from the Ontario Public Service Employees Union. Good morning and welcome to the committee.
Mr Tim Hadwen: I am here on behalf of OPSEU. I am Tim Hadwen, their general counsel, and I participated actively in the hearings at the Walkerton inquiry.
The Ontario Public Service Employees Union represents almost all of Ontario's front-line public servants, 50,000 or so, and it includes all of the environmental officers, investigators and lab staff who worked in the Ministry of the Environment throughout the Walkerton tragedy and continue to do so, as well as the Ontario Clean Water
Agency water treatment plant operators and other staff who participated so actively in the Walkerton remediation. The union has also participated extensively in the Walkerton inquiry.
In general terms, the members of the union would want to tell you that they're proud of the public services they provide and are proud of the work they have done to ensure safe drinking water for Ontarians. They have gone on doing the best they can, notwithstanding the deep and as yet unrepaired cuts to the Ministry of the Environment
that have so compromised the ability of the staff of the ministry to do its job.
There are many issues that could be raised about the bills that are before you, but it would seem most productive in the time available to focus on a particular issue. The issue I'm going to address is under Bill 195 and it's the wording of sections 6, 7 and 8.. It appears, based on the current wording of sections 6, 7 and 8 of Bill 195,
which are in the materials that I provided to you, that the act contains an omission from following through on the recommendations made by Mr Justice O'Connor with respect to who will do the work.
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The general background to this issue is that Mr Justice O'Connor found that safe drinking water is, perhaps not surprisingly, best ensured by a directly responsible government, a government that does its own regulation and enforcement. He further found that the government should be organized and resourced to fulfill that responsibility
itself. Mr Justice O'Connor heard a lot of submissions to the contrary. He heard submissions, including from the current government, in which it was argued that Ministry of the Environment functions should be devolved to other ministries, to outside operating agencies, to third parties, or to industry in the form of voluntary compliance. In the end, though, the
commissioner saw the value of the ministry doing the job in question, and found correctly that it is in the public interest, and is the best way to ensure safe drinking water, for there to be an integrated, dedicated ministry with direct political accountability. He so recommended, and he did so by spelling out some very specific recommendations about the Ministry of
the Environment.
In his report, on page 396, the front page of the package of material you've been provided, he summarizes his recommendations with respect to the appropriate structure to be found within the Ministry of the Environment. I want to read quickly from the second paragraph where he says, "I also propose the establishment of a specialized
Drinking Water Branch within the MOE responsible for the oversight of drinking water treatment and distribution systems."
Going on to the sentence after the next one, "Within this branch I recommend creating a new position, the Chief Inspector - Drinking Water Systems, responsible for the inspections program."
He goes on to talk about the role of the individual inspectors, and he says, "The Drinking Water Branch would assume oversight and responsibility for the proposed quality management accreditation program" and "be responsible for granting ... approvals."
In the next paragraph, the commissioner states, "To date, the MOE has conducted investigations and prosecutions of those suspected of non-compliance with regulatory requirements through its Investigations and Enforcement Branch.... I am satisfied that the IEB of the MOE should remain as presently constituted, a separate branch within the
ministry."
Turning to the next page in the excerpts you have from the report, you'll see at the bottom of page 409, under the heading "Enforcement": "In regard to investigations and enforcement, the" Safe Drinking Water Act " “should maintain the investigation and enforcement function in a separate Investigation and Enforcement Branch (IEB) of the
MOE."
So how does the Safe Drinking Water Act measure up to those specific recommendations about how these crucial functions should be carried out? The Act does not deal in detail with ministry organization or resourcing, perhaps fair enough, but it does assign tasks to three types of people, and those three types of people are referred to
directly in sections 6, 7 and 8 of the Act. If I could ask you to have a quick look at sections 6, 7 and 8, you'll see how the assignment of personnel is dealt with.
The first group discussed is Directors -- this is in section 6. The Directors are the persons who will supervise and ultimately approve the issuing of permits, licences, approvals, as well as suspend and sanction persons who are not in compliance.
You'll see that, under section 6(1), "The minister shall in writing appoint such Directors...."
Then, under 6(2), "In making an appointment under this section, the minister shall appoint only ... an employee of the ministry or a member of a class of employees of the ministry...." That would seem to be directly in accord with the recommendations contained in the report I read to you a couple of minutes ago.
Then it goes on to say, "or ... a person other than an employee of the ministry or a member of a class of such employees, if the appointment is approved by the Lieutenant Governor in Council."
My point is that it was the recommendation in the Walkerton inquiry report that the functions of the Directors are to be carried out by the Ministry of the Environment and Ministry of Environment staff, and that raises a concern about subsection (2)(b) of this section.
The concern, though, deepens when reviewing sections 7 and 8. Because under section 7, the minister is to appoint a Chief Inspector to carry out a range of crucial duties, not the least of which is, "The provision of advice and recommendations to the minister" and also the monitoring of "the implementation of operational policies" within
the Ministry of the Environment. The notable thing, though, in section 7 is what's missing, which is any requirement that the office of the Chief Inspector be that of a ministry employee. There is no limitation apparent on the face of the act as to who can be appointed a Chief Inspector, and no requirement that that person be, as intended by the recommendations of the
commissioner, a core member of the Ministry of the Environment.
Finally, referring to section 8, which is the section in which the minister is able to designate provincial officers, these provincial officers are, of course, the investigators and enforcers in the Investigation and Enforcement branch of the Ministry of the Environment who are charged with policing, if you will, the requirements under
the Safe Drinking Water Act. Once again, in section 8, there is no stated requirement, in sharp contradistinction even to the words in section 6, for the staff of the Investigation and Enforcement branch to be used in this function. To put it another way, there is no stated requirement that the Ministry of the Environment is to carry out this function.
Those sections, in that respect, appear to be significantly inconsistent with the recommendations put forward by Mr Justice O'Connor. Our recommendation is that those sections be changed so that in each case those crucial functions are ones that are to be performed by the staff of the Ministry of the Environment, as has been intended by
the Walkerton inquiry report recommendations.
The fact that it's not so in the current Act raises concerns about what the intention is under the present Act. It may reflect a lack of real commitment to redeveloping the ministry; it may reflect a reluctance to actually comply with recommendations around resourcing; it may reflect a continuing desire to splinter or downsize
government; it may reflect a desire to wait until the spotlight has passed but to know that you have the statutory ability to make changes of that kind later on.
Those are concerns that the current wording of the Act raises. The way to deal with those concerns and to fully implement the recommendations would seem to be to amend the Safe Drinking Water Act to address those shortcomings in sections 6, 7 and 8. The result of doing that would be to ensure the direct governmental accountability of the
kind contemplated by Mr Justice O'Connor. I close by reading from page 430, which you also have in your materials.
"I question whether, if the inspections and oversight role at the time of the Walkerton outbreak had been exercised through an independent third party, the government would have been under the same need to be accountable for what took place or would have taken the immediate action that it did. Immediate and direct political
accountability for the regulatory and oversight role is an important safeguard for the people of Ontario to ensure the safety of their drinking water."
The way that safeguard - immediate and direct political accountability- is ensured is to make sure that the persons who are doing the work are ministry persons for whom the minister is directly accountable.
Thank you very much. Those are my submissions. I'd be happy to take any questions, of course.
The Chair: That leaves us about two minutes per caucus. We'll start with Ms Churley.
Ms Churley: Thank you very much for your presentation. I guess nobody can say, "Well, you're from OPSEU and clearly you would always come to protect jobs," because you're quoting directly from Justice O'Connor and the government said that they would fulfill every single one of the recommendations in the inquiry. This is a concern
that we really haven't talked much about. The focus seems to be, so far, mostly on source protection and full cost recovery, but I think you've raised a very important and vital point. Of course we'll be making those amendments which, now that the government has been made aware of them, they will accept, or maybe they'll make them themselves.
I wanted to ask you quickly if you've had a chance to examine the other bill. What do you think about the possibility within that bill -- that's Bill 175, the sustainable water act -- whether you read it that the government can step in, the minister can step in and force a municipality to privatize its system if they don't like the plan
or they haven't come up with a full cost recovery plan?
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Mr Hadwen: That raises significant concerns, but I want to point out a particular issue that may not be exactly what you're looking for, which is the role of the Ontario Clean Water Agency, which is one of the groups represented by OPSEU. It is important for the minister to have the ability, in circumstances where a municipality
is functioning in a substandard fashion, to require remediation efforts to be undertaken and to be in a position to require that the services of the Ontario Clean Water Agency be used. That's the particular comment I have available for you at the present time about those provisions in that bill.
Mr Dunlop: Thank you so much for coming forward this morning with your recommendations. I just want to ask you a question for a moment on the role of OPSEU and the role of what you would deem to be essential services when we're dealing with this Act and the inspection of water systems etc. Could you enlighten us on that a little
bit?
Mr Hadwen: Under the Crown Employees Collective Bargaining Act there is a requirement for an essential services agreement to be entered into as a prerequisite to any strike or lockout. Under that essential services agreement process, the government and the union sit down and they negotiate what are the essential services and if
anybody has any dispute, including if the government thinks the level that is currently available from unions is not sufficient to protect the public interest, they can take the issue to the Ontario Labour Relations Board, which will rule on what level of service has to be provided to make sure that public health and safety, which is the focus of essential services,
is maintained throughout. So there is an independent adjudicator with the power to make sure that essential services in respect of water are provided. That's the current safeguard, and in my submission it's adequate; it's doing the job.
Mr Levac: Also, on page 430 of Justice O'Connor's report, in your copied memo to us, I notice something that I don't think we talked about, but I would like a comment from you on it. Justice O'Connor says he has "concerns about the potential for real and perceived conflict of interest if the inspection function is transferred to a
body make up of industry representatives."
Could you explain to me why, and I'm not asking you to think for Justice O'Connor, but maybe your opinion on that concern that there might be a conflict of interest in industry self-regulating -- and I think he mentioned Britain in there. That concern came up with the actual water issues.
Mr Hadwen: There's no way I'm going to think for him. I mean, he has done everything that needs to be done there. This issue was canvassed in the inquiry by groups that came forward and said that this kind of industry representational body would be a good way to ensure that water quality standards were adhered to. He heard those
representations from groups who were proposing exactly this kind of scheme, and he ultimately found against them on the basis that there is an inherent conflict of interest between being the supplier, the person concerned, if you will, with the profit motive from the running of that business, and at the same time being responsible for ensuring that standards are met.
It's not that industry doesn't have a responsibility for ensuring that the standards are met -- of course it does, it has an internal responsibility, which in a lot of cases it takes very seriously -- but the point is, that can't be the safeguard for the public. The safeguard for the public has to be government overseeing how it is that
industry attempts to comply, with an ability to get right inside there and find out how it's going and to deal with any problems that arise.
The final point I wanted to make is with respect to the point Ms Churley raised about self-interest. Of course the union is self-interested in respect of its members. That self-interest may have caused our becoming more pointedly aware of this issue, but we're not asking you to adopt these recommendations on the basis of the
self-interest of OPSEU; we're asking you to adopt these recommendations on the basis that they were recommended by Mr Justice O'Connor and are important to safeguard drinking water for the citizens of Ontario.
The Chair: Thank you very much for coming before us here this morning and making your presentation. We appreciate it.
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