ARCHIVED - Canadian Artists and Producers Professional Relations Tribunal - Report

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Section II: Analysis of Program Activities by Strategic Outcome

Strategic Outcome #1 - The rights of artists and producers under Part II of the Status of the Artist Act are protected and respected.

Program Activity 1: Certification, Complaints and Determination Program

Program Activity Descriptions

The Tribunal’s single strategic outcome is achieved through the Certification, Complaints and Determination Program, supported by the Tribunal’s internal services.

This program deals with applications for certification, revocation of certification, review, determination, and consent to prosecute, and with complaints of unfair practices, brought forward by artists, artists’ associations or producers, under Part II of the Status of the Artist Act, which governs professional relations between self-employed artists and producers.

2010-11 Financial Resources ($ millions)

Planned Spending	Total Authorities	Actual Spending
1,199	1,593	801

2010-11 Human Resources (FTEs)

Planned	Actual	Difference
7	5	2

Expected Results	Performance Indicators	Targets	Performance Status
Fair and timely resolution of cases.  Stakeholders have easy, timely access to information about the Status of the Artist Act and their rights and responsibilities under it, and about Tribunal decisions and activitiesInformation bulletins published within 60 days of decisions and other major events	Average number of calendar days between hearing and issue of reasons	Average time between hearing and issue of reasons does not exceed 60 calendar days	No Tribunal decision required issue of reasons.  In case requiring hearing, Tribunal rendered decision day of hearing.
	Average time to process cases from application to issue of decision	Average time to process all cases from application to issue of decision does not exceed 200 days	All final decisions in the fiscal year were well within target.
	Cases are upheld on judicial review	At least 75% of cases are upheld on judicial review	There was one judicial review application of a Tribunal decision in the period.  Federal Court of Appeal rejected application and thereby upheld Tribunal’s decision.
	Requests for mediation assistance result in complaints resolved and in agreements reached or renewed	75% of requests for complaints mediation assistance result in complaints resolved 75% of requests for bargaining mediation assistance result in agreements reached or renewed	No parties requested mediation assistance in the review period.
	Prompt response to requests for Information	Information requests responded to within 2 working days	100% of responses met the target.
	Timely information bulletins	Information bulletins published within 60 days of decisions and other major events	A February 2010 Tribunal decision was not reported in an Information Bulletin until May 2010, missing the target by 2 weeks.  Subsequently, a decision was taken to issue Information Bulletins on a monthly basis.  This has been done every month since September 2010.
	Stakeholder satisfaction.	Stakeholders are satisfied, based on ongoing informal surveying	Informal surveying indicates continued stakeholder support but some frustration with limitations of the Tribunal and the Status of the Artist Act.

Performance Summary and Analysis of Program Activity

During fiscal year 2010-2011, the Tribunal pursued three priorities in order to achieve its strategic outcome through the Certification, Complaints and Determination Program. It continued to focus on timeliness and fairness in dealing with requests under the legislation. It continued its efforts to ensure that stakeholders have timely information about the Act and their rights and responsibilities under it, and about Tribunal decisions and activities, and continued to improve its management practices.

Priority 1: Deal with matters brought before the Tribunal with high quality service

High quality in processing of cases includes the work of staff, in preparing cases and providing legal advice, and the work of the Tribunal in issuing decisions.

The level of case activity in the fiscal year continues to be well within the Tribunal’s capacity. Certification cases have decreased over the years since the passage of the Status of the Artist Act, with most sectors of artistic activity now represented by certified artists’ associations. Increasingly, inquiries and cases brought before the Tribunal concern issues that arise in collective bargaining.

Eight certifications of artists’ associations as sectoral bargaining agents came up for renewal; all eight were renewed. The Tribunal issued one interim and eight final decisions. At year’s end, four cases were pending. Details on cases are presented in the Tribunal’s annual report and its Information Bulletins, all available on the Tribunal’s Web site at www.capprt-tcrpap.gc.ca.

The Tribunal’s ability to serve its stakeholders was affected during the fiscal year by the fact that it did not have enough bilingual members to ensure quorum in hearings requiring both official languages. The Tribunal received a complaint in February, 2011, but was unable to deal with it because it had only two bilingual members. The Act stipulates that three members constitute a quorum for proceedings of the Tribunal, and under the Official Languages Act, when English and French are the languages chosen by the parties for a proceeding, every member who hears the case must be able to understand both languages without the assistance of an interpreter.

As set out in the 2010-2011 Report on Plans and Priorities, the Tribunal’s performance measurement framework looks at timeliness and fairness. These two factors are interrelated but distinct, and require different performance indicators and measurements.

For timeliness, we use two indicators: the time taken to issue reasons for a decision after a hearing, and the total time taken to process a case, from the date an application is completed until the date of the decision. Targets and performance information for these indicators are shown in the table above.

The first indicator is not applicable for the past fiscal year, as none of the decisions rendered by the Tribunal required reasons to be issued. In the one case requiring a hearing, the Tribunal issued its decision orally the day of the hearing.

The second indicator is based on time elapsed from the date of receipt of a completed application to the date of the final decision in the case. As shown in the table, the Tribunal’s decisions were issued well within the target.

In the Tribunal’s internal monitoring and evaluation, performance information is analyzed over multiple years, in order to identify trends.

The Tribunal uses the term “fairness” broadly, to encompass all its responsibilities as a quasi-judicial tribunal, such as impartiality, accessibility, integrity, and confidentiality.
We use as an indicator of fairness the percentage of Tribunal decisions upheld on judicial review. The Federal Court may review a Tribunal decision in the following circumstances:

• if the Tribunal acted without jurisdiction or beyond its jurisdiction, or refused to exercise its jurisdiction;
• if it failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; or
  
• if it acted, or failed to act, by reason of fraud or perjured evidence.

It is recognized that parties may be dissatisfied with Tribunal decisions but not seek judicial review, for any number of reasons, including lack of resources. Nonetheless, the Federal Court of Appeal acts as the arbiter of fairness of federal quasi-judicial tribunals, so this is an important indicator. We have set as a target that more than 75 percent of our cases are upheld on judicial review.

There was one application for judicial review in 2010-2011. It was submitted to the Federal Court of Appeal on February 23, 2011, and the Court rendered its decision on March 24, 2011, rejecting the application and thereby upholding the Tribunal’s decision.

As with timeliness, we collect this information yearly but analyze it over longer periods. To date, only four of the Tribunal’s decisions have been challenged in this manner. Besides the 2011 decision, two requests for judicial review were dismissed by the Federal Court of Appeal in 2000 and 2004, and a request was initiated but withdrawn in 2002.

The Tribunal is committed to maintaining and strengthening its research function. The Tribunal deals continually with new issues, and its jurisprudence is largely innovative, requiring a strong research capacity to ensure that decisions are fair and reflect the realities of the stakeholder community. Tribunal staff continued developing research resources over the course of the fiscal year, meeting with producers and artists’ associations and attending industry conferences, and facilitated information and training sessions for Tribunal members on developments in broadcasting and labour relations. The Tribunal’s case management database was further developed and refined over the course of the year.

Priority 2: Fully inform and assist stakeholders

The Tribunal’s second priority is to fully inform and assist the artists, artists’ associations, and producers that make up its stakeholder base. The Tribunal has a duty to ensure that artists, artists’ associations and producers are aware of their rights and responsibilities under the Status of the Artist Act. For parties to benefit from the Act, for collective bargaining under the Act to take place and for the long-term objectives of the Act to be realized, the parties must understand the legislation.

One way that the Tribunal does this is through timely responses to inquiries. The Tribunal receives a wide variety of questions from stakeholders, dealing with subjects like jurisdiction, specifics of the various cultural industries, and how to use the Act. Tribunal staff members respond to these questions quickly and thoroughly, always inviting further comment or question. The Tribunal’s target is to respond within 2 working days of the receipt of the inquiry. The Tribunal met or exceeded its target in 100 percent of its inquiry responses.

The Tribunal is committed to facilitating collective bargaining by making research tools and resources available to artists associations and producers. The Tribunal works in an informal partnership with Human Resources and Skills Development Canada (HRSDC) to make scale agreements readily available to stakeholders for research purposes. HRSDC runs a database known as Negotech that digitally stores collective agreements filed with the Minister of Labour. The Tribunal’s website provides hyperlinks to scale agreements on Negotech. For many of the scale agreements, the Tribunal provides summaries of salient features such as provisions dealing with new media. The Tribunal added seven newly concluded scale agreements, with summaries, to the website over the fiscal year.

With respect to more general information needs about the Act and the Tribunal’s services and activities, the Tribunal uses information bulletins, regularly-updated information on its Web site, and information sessions for stakeholders. Follow-up with stakeholders has shown that these are well received and considered useful.

Large-scale information sessions for stakeholders have in recent years given way to more tailored and customized information. The Tribunal’s stakeholders have different, often quite specific, needs for information. More focused personalized information and small group or individual meetings are often a more effective way of addressing those needs. The Tribunal emphasized these more direct approaches to stakeholders, including participation in industry conferences that bring stakeholders together and allow multiple meetings and information exchanges, maximizing the effective use of Tribunal staff time. In 2010-2011, Tribunal staff used informal means to increase the knowledge and awareness of the Act and the Tribunal among a cross-section of stakeholders from the artists’ and producers’ communities. Both approaches, formal presentations and informal meetings, are useful, and the Tribunal will continue to use them both, as appropriate.

The Tribunal issued eight information bulletins in 2010-2011. The bulletins provide a variety of information, such as scale agreements added to the Tribunal’s website. A decision was taken during the year to issue the bulletins on a monthly basis, to increase the availability of information to stakeholders.

The Tribunal continued revising its website to make it more helpful and accessible, and made major revisions to the website, adding links to scale agreements and summaries of agreements. The website received 41,424 hits from April 1, 2010, to March 31, 2011.

Research to support the Tribunal’s work with artists’ associations and producers continued to be important in 2010-2011. Developments in broadcasting and new media again dominated the work of staff during this period. Broadcasting is one of the principal areas of the Tribunal’s jurisdiction, and its challenges for artists’ associations and broadcasters are a continuing focus for the Tribunal. Research staff monitored and analyzed developments in broadcasting and new media throughout the fiscal year, tracking CRTC and Parliamentary initiatives and attending industry conferences. Copyright, including the debate over proposed amendments to the Copyright Act, was another important area of research and study during the year.

Priority 3: Improve management practices

As in previous years, the Tribunal used cost-saving agreements with providers for many services not required on a full-time basis. It contracted with the Department of Canadian Heritage for human resources services, with Industry Canada for security and mail services and website hosting, and with the Public Service Labour Relations Board for informatics support. It has arrangements with two other federal labour boards to use their hearing rooms and library services. It also contracts for the services of a financial analyst.

The Tribunal Secretariat continued to maximize its human resources, selecting multi-skilled, flexible staff capable of handling a wide variety of responsibilities. This matches the economic efficiency of the Tribunal itself: Tribunal members are part-time appointees, called on and paid only as needed, and usually bilingual, which facilitates scheduling of hearings. The Tribunal continued to provide accommodation and administrative and financial services to Environmental Protection Review Canada, thereby lowering the overall costs to the government.

The Tribunal continued to develop its management practices in 2010-2011, working on implementing government-wide initiatives and continuing work on those initiatives already implemented.

The Tribunal continued to work with and update its Human Resources Plan. It uses this plan to forecast its staffing needs, deal strategically with staffing, retention and succession issues, and mobilize and sustain the energies and talents of its members and employees, enabling them to contribute to the achievement of organizational goals.

The Tribunal has internal policies to promote excellence in performance, accountability, and workplace well-being, and a code of values and ethics as well as policies on harassment and the internal disclosure of wrongdoing. To ensure that these policies remain current and relevant, the Tribunal further refined its policy review and renewal cycle, including continued study and development of evaluation strategies and performance measurement tools.
The Tribunal’s human resources and business planning are integrated, and it uses a Strategic Human Resources Plan and a Staffing Management Accountability Framework. In 2010-2011, it continued to monitor staffing actions in relation to its staffing strategies and plans, although the small number of positions and of staffing actions hardly justifies the term “statistics” and makes identification of trends or tendencies difficult.

Lessons Learned

Since the creation of the Tribunal over 15 years ago, virtually all cases that have come before the Tribunal have involved the use of both official languages. Under the Official Languages Act, when English and French are chosen by the parties for a proceeding, every member who hears the case must be able to understand both official languages without the assistance of an interpreter. Given that the number of members appointed to the Tribunal is small, and that the Status of the Artist Act required that the Tribunal sits as a panel of three members to hear a case, it is essential that at least three bilingual members are appointed at the Tribunal in order to have a quorum of three bilingual members to hear cases.

The Tribunal was able to ensure quorum for one of the cases requiring a hearing, but only because one bilingual member whose term had expired remained seized of the case in accordance with the Act. The Tribunal currently only has two bilingual members. When a new application was received, requiring three bilingual members for quorum, the Tribunal was unable to hear the case, and the application was put on hold. The delay in hearing the case has a negative impact on the Tribunal’s relations with its stakeholders.

Program Activity 2: Internal Services

Program Activity Descriptions

Internal Services are activities and resources that support the needs of the Tribunal’s operating program and other corporate obligations. They include administrative, human resources, financial, information management services, and information technology services.

The Tribunal has internal service expectations and monitors overall service performance of its internal services. The Tribunal has a sound results-oriented framework utilizing the Management Accountability Framework (MAF) and a quality assurance framework that will continue to ensure that services are conducted in a timely and cost effective manner.

The Tribunal’s internal services have had to be carefully designed to take into account the extremely small size of the organization. The Tribunal obtains from other organizations some corporate services that are not required on a full-time basis. For example, it has service agreements with Canadian Heritage for human resources services, and with the Public Service Labour Relations Board and Industry Canada for informatics, security, and mail services. It has arrangements with two other federal labour boards to use their hearing rooms and library services.

2010-11 Financial Resources ($ millions)

Planned Spending	Total Authorities	Actual Spending
869	517	399

2010-11 Human Resources (FTEs)

Planned	Actual	Difference
3	2	1

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