Current Uniform Acts

Uniform Public Inquiries Act (2004)



Part III. Other Matters


Appointment


22(1)    Members of a commission or a person appointed to conduct an inquiry under Part II shall be appointed on terms and remuneration set by the Lieutenant-Governor in Council in the order of appointment.
(2)    The Lieutenant-Governor in Council may terminate an appointment made under this Act.
(3)    A person appointed under this Act may resign by giving written notice to the Lieutenant-Governor in Council.
(4)    The Lieutenant-Governor in Council may by order replace a person appointed under this Act who has resigned or whose appointment has been terminated.
(5)    Where more than one person is appointed as a commissioner or to conduct an inquiry, the Lieutenant-Governor in Council may by order appoint one of them as chair.

Commentary: This section provides explicit Executive power to appoint commissioners, specify terms of appointment and to replace commissioners.

Commission funding

23(1)    Where an inquiry is to be held under this Act, the minister shall prepare a budget for the conduct of the inquiry in consultation with the commission or a person appointed to conduct an inquiry under Part II.
(2)    The minister shall submit the budget for approval in the manner set by the Act respecting the financial administration of the [enacting jurisdiction].
(3)    Where the budget is approved, the expenditures incurred within that budget shall be paid out of the Consolidated Revenue Fund without further approval, except that the commission and a person appointed to conduct an inquiry under Part II shall comply with any guidelines for expenditures by departments and agencies of the government of the [enacting jurisdiction] and any rules made by the Lieutenant-Governor in Council in respect of the inquiry under section 32.
(4)    Where the terms of reference for the inquiry or the dates set for termination of the inquiry or delivery of the commission’’s report have been revised, the minister may prepare a revised budget and submit it for approval in the manner described in subsections (1) to (2), and subsection (3) applies to the further expenditures where the budget is approved.

Commentary: This is a flexible process provision. The objectives are transparency, accountability and promotion of inquiry effectiveness. It is not intended to mandate certain funding for inquiries. Differences in the budget process in different jurisdictions will have to be taken into account if this provision is enacted.

Staff

24(1)    A commission or a person appointed to conduct an inquiry under Part II may engage the services of
(a)    counsel, clerks, reporters and assistants; and
(b)    other persons having special technical or other expertise or knowledge.
(2)    A person engaged under subsection (1) may be authorized to inquire into a matter that is within the jurisdiction of the commission or inquiry.
(3)    A person authorized under subsection (2) has the same privileges and immunities given to persons under section 25.

Commentary: Inquiry efficiency and effectiveness requires authority to retain necessary staff and to delegate certain inquiry functions to staff members.

Immunity

25(1)    A commission, commissioners, a person appointed to conduct an inquiry under Part II and legal counsel to the commission or inquiry engaged under section 24 have the same privileges and immunities as a judge of the court for any decision or action or failure to act in carrying out an inquiry under this Act.
(2)    A person authorized to inspect or search under section 12, 13 or 17 has the same privileges and immunity as a commission or a person appointed to conduct an inquiry under Part II would have in conducting the inspection or search.

Commentary: This immunity is intended to promote independence and impartial analysis, conclusions and recommendations. In the absence of this provision, commissioners may be entitled only to qualified privilege. Commission counsel are included, on the ground that they are an integral and visible part of inquiry processes.

Protection of employees

[26    Adverse employment action shall not be threatened or taken against an employee of any person because the employee has in good faith made representations as a participant or has disclosed information, in oral testimony, by the production of records, documents or other things or otherwise, to a commission, to a person appointed to conduct an inquiry under Part II or to staff or representatives of either of them.]

Commentary: This provision reflects an intent to facilitate information gathering by inquiries without resorting to coercive powers, while providing protection to information sources. Enforcement may be available under

Provincial Offences Acts.

It is bracketed as an option because there is uncertainty about the necessary and appropriate scope of this kind of protection, particularly whether it should cover information disclosed by employees prior to establishment of inquiries. There is also uncertainty about enforcement. Provincial Offences Act provisions may be available, but prescribed penalties are minor.

Review of actions

27    A decision or action taken by a commission or by a person appointed to conduct an inquiry under Part II is final and conclusive for all purposes and
(a)    shall not be challenged, reviewed, prohibited, restrained or quashed in any court; and
(b)    is not subject to any proceedings or process of any court.
Commentary: This privative clause promotes inquiry effectiveness by underlining intention that inquiries should be authoritative in their findings and recommendations, with limited judicial supervision. Even in the absence of explicit privative clauses, courts have in cases such as Morneault v. Canada (Attorney General), [2001] F.C. 30 (Fed. C.A.), concluded consistently that deferential standards of review apply to inquiries.
Joint inquiries
28    Where the scope of an inquiry to be conducted under this Act includes matters within the jurisdiction of the government of another province, territory or of Canada, the minister may enter into an agreement or arrangement with that government about the joint establishment of a commission or inquiry and the manner in which the inquiry is to be conducted by the joint commission or inquiry.

Commentary: Joint inquiries may be established under agreement to address constitutional limitations, avoid duplication and facilitate interjurisdictional cooperation. The intention is that participating jurisdictions in joint inquiries should have reasonably equivalent inquiries legislation.

Preservation of records

29    The Lieutenant-Governor in Council shall provide for the preservation of the records of a commission or inquiry and shall protect information that is confidential or privileged.

Commentary: Ensuring preservation of inquiry records promotes the public interest in dissemination of inquiry results and maintenance of public information for future research.

Other Acts giving powers of commissioner


30    Where another Act confers upon a person or body the powers of a commissioner or commission under this Act, unless otherwise ordered by the Lieutenant-Governor in Council,
(a)    the powers conferred on the person or body are those powers given to a commission;
(b)    the person or body has the same privileges and immunities as a commission; and
(c)    a person who appears before the person or body has the same immunities and privileges as a person who appears before a commission.

Commentary: It is common practice to confer on various statutory authorities the powers of commissioners under Inquiries Acts. This creates the risk that incorporated inquiry powers may not be precisely tailored to the needs of particular authorities and that doubts may arise as to what powers were granted. Consequently, this section specifies the powers that would be included in such an incorporation in the absence of specific provisions. It is a “heads up” for legislators and their counsel, underlining the need to carefully consider the suitability of powers that may be incorporated.

Publication of orders

31(1)    An order made under this Act shall be published in the Gazette and made available to the public through another method determined by the minister.
(2)    Notwithstanding subsection (1), the minister may exclude from publication and public release those portions of the order setting out the terms of appointment and remuneration for commissioners or a person appointed to conduct an inquiry under Part II.

Rules
32    The Lieutenant Governor in Council may, either generally by regulation, for all commissions established and inquiries held under this Act, or by order for a specific commission or inquiry, make rules about
(a)    remuneration of commissioners and of a person appointed to conduct an inquiry under Part II;
(b)    remuneration of witnesses;
(c)    allowances to witnesses for travel and out of pocket expenses;
(d)    other expenditures for services and facilities; and
(e)    other administrative matters.

Commentary: Lieutenant Governor in Council rulemaking power is limited to administrative matters. Inquiries are intended, subject to the specific powers that may be given to Part II inquiries, to determine their own procedure.

Next Annual Meeting

2020 Annual Meeting

Frobisher Bay Inn

Iqaluit, NU

August 9 – 13, 2020