Report 3—The Governor in Council Appointment Process in Administrative Tribunals
Audit at a Glance Report 3—The Governor in Council Appointment Process in Administrative Tribunals
What we examined (see Focus of the audit)
The focus of this audit was to determine whether timely appointments of qualified individuals were being made to selected administrative tribunals to maintain continuity of service. We also assessed progress on some of the areas for improvement identified in our 2009 audit of the appointment process. These included guidance provided by the Privy Council Office, the number and length of vacancies, and communication to appointees concerning their reappointment.
The audit examined the roles played by the Privy Council Office, selected administrative tribunals, and respective portfolio departments (the department reporting to the minister responsible for a tribunal, which is part of the minister’s portfolio). We did not audit the appointment decisions or the roles played by ministers, ministers’ offices, or the Office of the Prime Minister.
Why we did this audit
This audit is important because administrative tribunals provide a mechanism for redress for decisions made by the government and can have a direct impact on Canadians. Appointments to these tribunals must be timely, to ensure the tribunals can carry out their work. Appointees must also have the right background and experience to carry out their roles effectively.
What we concluded
We concluded that issues remained in the timely appointment of qualified individuals being made to selected administrative tribunals, which affected continuity of service to Canadians. Many key positions have sat vacant for long periods. These delays affected decision timelines for tribunals, which in turn affected 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.
We 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. While Privy Council Office officials indicated that documentation of this was not a requirement, in our view, this runs counter to the Privy Council Office’s requirement for accessible, competency-based, and transparent selection processes for all appointments.
What we found
Support for the Governor in Council appointment process
Overall, we found that since our 2009 audit, the Privy Council Office has issued guidance and information to ministers, departments, and tribunals on vacancies and on steps in the appointment process. However, this guidance is not accessible on the Privy Council Office website. In addition, although judges appointed to tribunals are not subject to the same appointment process as other appointees, the guidance does not mention this exception.
This is important because departments, ministers, tribunals, and potential and current appointees need to understand the requirements and steps involved in the appointment process so that vacancies can be filled with qualified appointees in a timely manner.
Recommendation. The Privy Council Office, in consultation with portfolio departments and tribunals, should indicate in its guidance whether there are any exceptions to the process requirements, such as the appointment of judges to tribunals.
Recommendation. The Privy Council Office should post its guidance in a central location so that all stakeholders can easily find and access the guidance.
Vacancies in administrative tribunals
Overall, we found ongoing and in some cases lengthy vacancies in Governor in Council positions. In two of the four tribunals we examined in depth—the Immigration and Refugee Board of Canada and the Specific Claims Tribunal Canada—these vacancies have resulted in delays in tribunal decisions.
We also found that appointees were not given sufficient notice if they will be reappointed. While communication of reappointment decisions to appointees was more timely than it was in 2009, we found that it still did not meet the requirement of six months’ notice for reappointment of fulltime appointees established by the Privy Council Office.
It is important for Governor in Council positions in tribunals to be filled in a timely manner to avoid delays in important tribunal decisions that affect individuals. In addition, providing advance notice of reappointment to Governor in Council positions is important for continuity of operations in tribunals.
Recommendation. Innovation, Science and Economic Development Canada, Indigenous and Northern Affairs Canada, and Public Safety Canada should work with ministers, as well as tribunals, as early as possible to fill Governor in Council positions, in order to support continuity of operations.
Process to promote high-quality appointments
Overall, we found that the selection processes run by the Privy Council Office (for chair and other full-time positions) and by the Immigration and Refugee Board of Canada were advertised and had selection criteria. For several part-time positions, we saw no evidence that the position was advertised, or that candidates were assessed against selection criteria. The Privy Council Office indicated that there was always a selection process; however, this may not have been documented if it was conducted by ministers or their offices, as opposed to the Privy Council Office.
This is important because, as the Privy Council Office notes in its Guide to Managing the Governor in Council Appointments Process, “making qualified appointments is key to the achievement of the Government’s objectives and the strengthening of accountability. Recruiting and appointing the right individuals with the necessary expertise and skills is essential to the effective functioning of government organizations.” The Guide requires ministers to develop selection processes that reflect the specific nature of the position and the weight of its responsibilities. The Guide emphasizes the need for “accessible, competency-based and transparent selection processes.”
Recommendation. We made no recommendations in this area of examination.
Orientation and training for appointees
Overall, we found that there were a number of types of relevant training to orient new chairs to government policies and procedures and their accountabilities as leaders of administrative tribunals. However, we noted that one quarter of the chairs did not attend any of the training offered by the Privy Council Office or the Canada School of Public Service.
Having appropriate orientation and training is important because appointees need to have certain knowledge for the effective functioning of their organizations within the government context. New appointees bring knowledge and skills to the position when they are appointed, but may not have knowledge of 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.
Recommendation. We made no recommendations in this area of examination.
Entity Responses to Recommendations
The audited entities agree with our recommendations, and have responded (see List of Recommendations).
|Report of the||Auditor General of Canada|
|Type of product||Performance audit|
|Completion date||12 February 2016|
|Tabling date||3 May 2016|
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