Vol. 149, No. 11 — June 3, 2015
SOR/2015-107 May 13, 2015
PUBLIC SERVANTS DISCLOSURE PROTECTION ACT
Rules Amending the Public Servants Disclosure Protection Tribunal Rules of Procedure
Whereas, pursuant to pursuant to subsection 21(4) (see footnote a) of the Public Servants Disclosure Protection Act (see footnote b), a copy of the proposed Public Servants Disclosure Protection Tribunal Rules of Procedure, substantially in the annexed form, was published in the Canada Gazette, Part I, on February 7, 2015 and interested persons were given a reasonable opportunity to make representations with respect to the proposed Rules;
And whereas, pursuant to subsection 21(3) (see footnote c) of that Act, the Chairperson of the Public Servants Disclosure Protection Tribunal has consulted with the Royal Canadian Mounted Police and has ensured that the proposed Rules take that organization’s security and confidentiality needs into account;
Therefore, the Chairperson of the Public Servants Disclosure Protection Tribunal, pursuant to subsection 21(2) (see footnote d) of the Public Servants Disclosure Protection Act (see footnote e), makes the annexed Rules Amending the Public Servants Disclosure Protection Tribunal Rules of Procedure.
Ottawa, May 11, 2015
Chairperson of the Public Servants
Disclosure Protection Tribunal
RULES AMENDING THE PUBLIC SERVANTS DISCLOSURE PROTECTION TRIBUNAL RULES OF PROCEDURE
1. The definition “registrar” in section 1 of the Public Servants Disclosure Protection Tribunal Rules of Procedure (see footnote 1) is replaced by the following:
« registraire »
“registrar” means an employee of the Administrative Tribunals Support Service of Canada who is designated by its Chief Administrator to act as registrar for the Tribunal.
2. The Rules are amended by adding the following after section 8:
8.1 If a document is filed by electronic filing, any electronic version of it is, in the absence of evidence to the contrary, considered to be the original of the document.
8.2 If the Tribunal creates an electronic version of a document that is filed by hand, fax or by mail, the electronic version is, in the absence of evidence to the contrary, considered to be the original version of the document.
3. The heading before section 29 of the French version of the Rules is replaced by the following:
RECUEIL DE TEXTES FAISANT AUTORITÉ
4. (1) Subsection 29(1) of the French version of the Rules is replaced by the following:
29. (1) Une partie ou un intervenant qui a l’intention d’invoquer à l’audience des dispositions législatives ou réglementaires, de la jurisprudence ou de la doctrine, les reproduit dans un recueil de textes faisant autorité et surligne les passages pertinents.
(2) Subsection 29(3) of the French version of the Rules is replaced by the following:
(3) Le recueil de textes faisant autorité est déposé au moins quinze jours avant la date à laquelle l’audience commence.
COMING INTO FORCE
5. These Rules come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Rules.)
Issues and objectives
An amendment to the Public Servants Disclosure Protection Tribunal Rules of Procedure (the Rules) is required to align with the enactment of the Administrative Tribunals Support Service of Canada Act (ATSSCA), as enacted by the Act to implement certain provisions of the budget tabled in Parliament on February 11, 2014 and other measures (S.C. 2014, c. 20, s. 376), assented to on June 19, 2014. It is also proposed to modernize Tribunal processes by stating that the electronic version of a document filed electronically is to be considered its original and by allowing the Tribunal to create original electronic documents from their paper version.
Description and rationale
Firstly, the proposed amendment will align the Rules with the ATSSCA by redefining the term “Registrar.” The ATSSCA provides for the centralization of administrative services devoted to affected federal administrative tribunals within a new entity called the Administrative Tribunals Support Service of Canada (the Service). As a result, amendments must be made to the Rules to reflect the fact that the Tribunal will no longer independently provides for its own registry services.
By redefining the Tribunal’s registrar as being a person designated by the Service, the Rules of the Tribunal reflect the effective transfer of its registry function to the Service. The proposed new definition of the term “Registrar” will have a minimal impact on the procedures already put in place by the Tribunal.
Secondly, the proposed changes would state that the electronic version of a document filed electronically with the Tribunal is to be considered its original, and it would allow the Tribunal to create original electronic documents from their paper version. With this change, the Tribunal aligns itself with modern process practices to achieve better efficiency.
The amendment proposes two assumptions of authenticity for electronic versions of documents that are exchanged during Tribunal procedures. The first assumption applies to the electronic version of documents that are filed at the Tribunal; the electronic version of a document filed via electronic means (e.g. by email or online filing) will be considered to be the original of the document. This assumption could be questioned by a party should an issue over the authenticity of a document arise.
The second assumption applies to documents that are created by Tribunal. In that case, the Tribunal will be allowed to create an electronic version of the paper document and this electronic version will be considered to be the original of the document. Again, the assumption could be questioned by a party if an authenticity issue arises.
The proposed changes will not have the effect of constraining Parties to use electronic supports for their Tribunal proceedings. However, these provisions would encourage them to do so and allow for the Tribunal to modernize the way in which it communicates with parties.
As a comparison, the Rules of the Supreme Court of Canada, SOR/2002-156, recognize at subsection 21(2) that if an electronic version of a document is required, it must be a true copy of the original printed version, and that in the case of a discrepancy between versions, the original printed version will be considered official. These Rules thus recognize the possible use of electronic documents.
Similar provisions on the use of electronic documents in proceedings were also recently adopted by the federal Social Security Tribunal in sections 8 and 9 of its Regulations (SOR/2013-60).
It is a common trend within other federal administrative tribunals to use online filing systems or to allow filing via other electronic means (namely emails) in order to increase efficiency.
Finally, a consequential amendment should be brought to the French version of section 29 of the Rules that states that, in certain situations, a party or interested person must prepare a “book of authorities.” While the term does not present any problem in the English version, the current French use of “cahier de textes faisant autorité” generally refers to a paper document. Given that the proposed amendment to the Rules would allow the production of the “book of authorities” in electronic format, it is proposed that “cahier” be amended to “recueil,” a more neutral word that would include paper-based documents as well as documents in electric format.
Benefits and costs
The amendments will not entail any additional costs to the Government or to those covered by the Rules. Additional resources are not necessary to ensure compliance and enforcement. It is likely that there will be savings made as a result of added efficiencies.
During the development of the proposed amendment that redefines the term “Registrar,” the Tribunal consulted with stakeholders engaged in implementing the ATSSCA. Stakeholders concurred with the Tribunal’s suggestion that amending the definition of the term “Registrar” attains the alignment objectives. Pursuant to subsection 21(3) of the Act, the Chairperson of the Tribunal consulted with the Royal Canadian Mounted Police (RCMP), and the RCMP indicated that it supports this amendment.
Concerning the electronic serving and filing of documents, the Tribunal presented and discussed the proposed amendments with its consultation group composed of representatives from the Office of the Public Sector Integrity Commissioner, the Treasury Board Secretariat, the Public Service Alliance of Canada, the Association of Justice Counsel, the Professional Institute of the Public Service of Canada, the Association of Professional Executives of the Public Service of Canada and the Canadian Association of Professional Employees. The group met on May 8, 2014, for its first biannual meeting and were presented with the proposed amendments. All of the consulted stakeholders concurred with this amendment. Furthermore, as required by subsection 21(3) of the Act, the Chairperson of the Tribunal consulted with representatives of the RCMP who gave their support the proposed amendments.
The proposed amendments were published in the Canada Gazette, Part I, on February 7, 2015, followed by a 30-day public comment period. No changes to the proposed amendments were required following the consulting period.
Compliance and enforcement
The Rules will be administered by the Service and the Tribunal in accordance with principles established under the Act.
Interested persons may make representations to
Senior Legal Counsel
Public Servants Disclosure Protection Tribunal
90 Sparks Street, Room 512