Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 26 - Evidence - Morning Sitting
OTTAWA, Monday, April 21, 1997
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-66, to amend the Canada Labour Code (Part I) and the Corporations and Labour Unions Returns Act and to make consequential amendments to other Acts, met this day at 11:08 a.m. to give consideration to the bill.
Senator Mabel M. DeWare (Chair) in the Chair.
[English]
The Chair: Honourable senators, this is our third day of hearings on Bill C-66. This morning we have with us representatives from the Mining Association of Canada.
Please proceed.
[Translation]
Ms Gisèle Jacob, Vice-President, Public Affairs, Mining Association of Canada: Madam Chair, it is a pleasure for me to be here today to speak to you about Bill C-66 on behalf of the member companies of the Mining Association of Canada.
[English]
I am Vice-President of Public Affairs for the Mining Association of Canada. Also addressing you this morning will be Mr. Robert Cunningham, Executive-Director of the Saskatchewan Mining Association, and Mr. Don Downing, President of the Coal Association of Canada. My colleagues will be emphasizing aspects of Bill C-66 that are of particular interest and concern to our members. Before we start, however, I should like to say a few words about the Mining Association of Canada in particular and the mining industry in general.
The Mining Association of Canada is the national organization of the Canadian mineral industry. Its members are engaged in mineral exploration, mining, smelting, refining and the production of metals, industrial minerals and mineral fuels. Member companies account for the vast majority of Canada's output of metals and major industrial materials.
More than 70 per cent of the mining industry in Canada is controlled and managed by Canadians. The minerals and metals sector has made, and continues to make, a significant contribution to Canada's economic activity. Overall, the sector contributed approximately $23.7 billion dollars to the economy in 1995 or 4.4 per cent of Canada's gross domestic product. It provided more than 300,000 jobs, ranging from exploration to mining to metal fabrication. Many more Canadians, however, benefited from these activities, particularly in the areas of transportation, services and equipment supply.
Average weekly wages in the mineral industry approximate $1,000 per week, representing the highest average weekly wage in Canada, well ahead of all other sectors. More than 150 communities in all parts of Canada depend, in part or in large measure, on mineral-related activities and their associated spin-offs.
Mining is also a key player in the transportation network with metals and minerals accounting for close to 65 per cent of Canada's rail and sea freight. Our extensive use of land and marine transportation systems is one of the reasons we are here today. Minerals and fabricated minerals provide significant tonnage and revenue to Canada's transportation system, particularly bulk commodities such as coal, potash, sulphur and iron ore. In 1994, shipments of crude and fabricated mineral products transported by Canadian railways amounted to 134 million tonnes, representing close to 53 per cent of the total freight revenue in Canada. We expect 1995 statistics to show an increase of that percentage to 55 or 56 per cent.
More than 110 kilotonnes of crude minerals and fabricated mineral products were loaded and unloaded in Canadian ports in 1994. We expect approximately the same number in 1995, representing some 65 per cent of the total tonnage loaded in Canada. What happens in Canadian ports, as you can imagine, is of substantial interest to us.
Let us speak now about Bill C-66. We believe that the work leading up to the drafting of Bill C-66 has been long and comprehensive. There has been extensive consultation and analysis. After all, it has been 25 years since Part I of the Canada Labour Code has been reviewed. However, we believe that the same time and effort is not being afforded the bill itself.
Bill C-66 introduces provisions that had not been discussed previously or recommended by the Sims report. For example, clause 47.3(1), successive contracts for service, and clause 87.7(1), service to grain vessels, and others, in our view, provide unsatisfactory means to deal with contentious issues. Even though the consultation leading to Bill C-66 has been extensive and comprehensive, we believe that the bill itself introduces new provisions that have not been subject to the same consultation and analysis process.
We therefore respectfully request that you take the time necessary to thoroughly review the proposed legislation and to assess carefully its implications for the workplace of the 21st century.
Two major issues are of concern to us -- the provisions dealing with service to grain vessels and the prohibition relating to replacement workers. My colleagues will address these issues separately for you.
Mr. Donald Downing, President, Coal Association of Canada: Honourable senators, I will address clause 87.7(1), service to grain vessels. This issue has been raised before, but I want to raise it again because it is important. It holds economic consequences, if implemented.
The Canadian Chamber of Commerce has mentioned that this provision will create an unlevel playing field among various sectors of the economy. The Coal Association of Canada, in its brief to the Standing Committee on Human Resources Development, also addressed this fundamental issue of Canadian competitiveness, and I should like to reiterate some of our concerns.
As a context for my comments on the proposed legislation, I should like to describe the key attributes of the Canadian coal industry. In 1996, coal production reached approximately 75 million tonnes, a record, from 29 mines in five provinces. Total consumption was 52 million tonnes, mainly in electricity generating stations in six provinces and in the steel industry in southern Ontario. Approximately 11 million tonnes of coal are imported to central Canada, and exports totalled a record 34.5 million tonnes in 1996.
Coal is a bulk commodity, highlighting the importance of transportation to the industry. Coal is the largest commodity by volume moved by Canadian railways -- approaching 37 million tonnes in 1996 -- and is a major generator of revenue for the railway. There is a strong reciprocal dependence between coal and the transportation system. Each requires the other to be successful.
Exports, in particular, require efficient, cost-effective transportation because the international market for coal is extremely competitive. Exports from west coast ports exceed 34 million tonnes annually. There are three major terminals on the west coast, two in Vancouver, one in Prince Rupert and another private loading facility at Campbell River on Vancouver Island. Asian countries are the primary markets for this coal, principally Japan, Korea and Taiwan, but Canada ships coal to more than 20 countries. Our export industry has done an excellent job in developing new markets as the market for coal in Japan has changed over the last 15 years or so.
Canada's main competition in metallurgical coal and thermal coal are countries such as Australia, United States, South Africa, Indonesia and Colombia. Each of these countries offer some natural advantage to its producers over Canadian producers, not the least of which is a much shorter rail distance to tide water, typically 1 to 300 kilometres as opposed to 1,200 kilometres in Western Canada.
In terms of economic impact, coal mining employs more than 7,000 people directly, who are among the highest paid workers in Canada, with a net contribution to the economy of almost $2 billion a year. Just as important, coal mining creates a strong economic ripple effect or multiplier. A recent economic analysis by the Saskatchewan Energy Conservation and Development Authority shows a 3-to-1 multiplier for mine support services, which translates to total direct and indirect employment in the mining sector of 21,000. Coal transportation, rail and marine, results in another 31,000 direct and indirect jobs. Every coal mining job leads to five additional jobs in mine support and transportation sectors.
The economic impact of coal mining and transportation taken together is almost $3.5 billion a year and, when one includes employment in electricity generating stations, coal direct and indirect employment totals 73,000 and the economic impact is $5.8 billion or almost 1 per cent of Canada's GDP.
It is the sea-borne exports that create the interaction with the ports and marine service providers, and these coal exports are valued at some $2 billion a year. That is not insignificant by any measure.
My comments are intended to inform the Senate committee of an important sector of the economy, a contributor to investment, growth, employment and trade earnings and a mainstay of the transportation sector. Coal is important to the country.
The amendments proposed for Part I of the Canada Labour Code appear to reflect a view that grain is more important than coal. Indeed, one could be led to believe that grain is the most important commodity in the country. This is clearly not the case, and the proposed amendment, by attempting to make a special case for grain exports, diminishes the importance of the coal industry and all other commodity industries. Ironically, because this is labour legislation, it underscores the value of one worker over another. An individual working in grain is apparently more important than one working in coal, potash, sulphur, copper, or petrochemicals.
These comments are obviously aimed at clause 87.(7) of Part I, services to grain vessels. We are opposed to this amendment and propose that it not be allowed to stand, as it discriminates as between commodities and makes a special case for one. It suggests that the Government of Canada place a priority and a special status on grain that would be impossible for us to explain to valued coal customers in more than 20 countries. We therefore ask that all commodities be accorded equal treatment in the Canada Labour Code.
Mr. Robert Cunningham, Executive Director, Saskatchewan Mining Association: Before discussing clause 94.(2.1), I will try to explain why the Saskatchewan mining industry is concerned with this bill.
Basically, we are now the primary suppliers of uranium for electrical generating stations in a large portion of the world, producing almost 30 per cent of the world's consumption. As uranium mining is a federally regulated industry, we have a particular interest in these changes. The industry itself is a $2-billion industry in Saskatchewan. The primary one is potash, which is obviously affected by transportation; the second one is uranium; and the third one is coal. We have a distinct stake in the outcome of these changes.
The Chair: What was the percentage of uranium?
Mr. Cunningham: We produce almost 30 per cent of the world's consumption at this point.
We also have mentioned in previous consultations the issue of replacement workers and must reiterate our objection to any provision in the Canada Labour Code that would prevent employers from using replacement workers. As it is now written, clause 94.(2.1) is vague. "Undermining a trade union's representational capacity" is open to interpretation by the Canada Industrial Relations Board and certainly subject to litigation. It has been mentioned publicly by Nancy Riche of the Canada Labour Congress that that is exactly how the labour movement would treat this clause and that they would challenge every use of replacement workers in the courts or at the board.
An employer's right to attempt to maintain operations is the only counter movement to the employee's right to strike. It is through this delicate balance of power that both employer and employee needs are met. To our knowledge, the need to change that balance has not been demonstrated. On the contrary, even the Sims report recognizes that the use of replacement workers is a legitimate step taken by an employer to sustain the viability of an enterprise in the face of a harsh economic climate and unacceptable union demands.
By prohibiting the use of replacement workers, we are giving unions the power to decide whether a company stays open or closes. The threat of a strike can no longer be defined as the threat of withdrawal of services by a group of employees but, rather, as a threat of shut-down, which is not the balance of power contemplated in Part I of the Canada Labour Code. The proposed legislation would effectively remove an employer's right and ability to maintain production during a legal work stoppage. It would remove the employee's right to choose to continue to work during a legal work stoppage, remove the right of non-bargaining employees to work and be paid for that work, and remove the employer's ability to remain open and allow its own employees to work. Taking away the employer's right to maintain operations during a strike could also threaten the livelihood of many mining-dependent communities.
Under this provision, the employees would lose the ability to withstand unrealistic demands by the union. The average operation cost of uranium development is in the vicinity of half a billion dollars. The option of closing that operation down versus giving in to excessive demands has little appeal.
Our sector has had very few labour disruptions and has developed positive labour relations with our unions. In our view, the actual use of replacement workers is not as important as the ability to use replacement workers. If that ability were removed, as opposed to the actual use, the balance would be changed.
If, as Minister Gagliano pointed out, clause 94.(2.1) were designed to pre-empt unfair use of power by employers over employees, then we say that the act's existing provisions regarding unfair labour practices should be called into action. In our opinion, prohibiting the use of replacement workers is not the appropriate tool to address concerns regarding unfair labour practices. We ask the committee, therefore, to propose the removal of clause 94.(2.1).
Ms Jacob: This morning, we decided to focus on only those two aspects of Bill C-66 which are of particular concern to us. We have a few other concerns, but we know that you have a long day ahead of you and many witnesses to hear.
In closing, I should like to summarize our main recommendations. One, we ask that sufficient time be allowed for a proper review of Bill C-66. Two, we ask that the unfair advantage given to the shipment of grain be removed; and, three, that the ban on the use of replacement workers be removed.
We thank you for taking the time to listen to us. We believe that, if the Canada Labour Code is not to be reviewed for another 25 years, it is crucial that we get it right and that we create workplace conditions that will give both employers and employees fair and equitable rights to create and to access long-term employment. Such a partnership is essential to maintaining Canada's competitive position in the global marketplace.
The Chair: I should like to thank the three of you for your presentation this morning.
Senator Maheu: Ms Jacob, I should like to have your comments on the Sims task force report as it relates to service to grain vessels. That issue was extensively reviewed in the report as well as during the cross-country consultations by the minister. I understand that it was fully supported by the agricultural community and subject to review in 1999. The aim of the legislation is not only to reduce disruptions to grain exports but also to discourage reliance on back-to-work legislation. It seems that, every time there was a labour-management dispute, it ended up that Parliament had to legislate the employees back to work -- not that the disputes were numerous, but that was the end result. At the same time, bargaining rights were preserved in both the grain handling and the longshore industries.
Another thing that comes to mind when we are speaking about the preservation of grain handling during a lockout or a strike is whether we would have to interfere with the railway's right to strike? In other words, if the longshoremen were obliged to unload the trains, would we have to prohibit the railway's right to strike?
I have another question about replacement workers after we have had a response to this question.
Ms Jacob: I will ask Mr. Downing to answer that question. He is more familiar with transportation issues than I.
Mr. Downing: I can see why the agricultural community would have accepted that proposal. However, the transportation system is intended to serve all commodities. To resolve a labour dispute by focusing on one commodity means that that commodity receives preferential treatment from the transportation system.
While I recognize that trying to resolve the labour situations at the ports by not allowing for work disruption, for example, could impact upon the railway, that, by itself, does not provide legitimate support for special treatment of grain.
Senator Maheu: Grain enjoys protection under the Canadian Constitution. How do you respond to that?
Mr. Downing: Our association is not expert in terms of dealing with port labour situations. I know that the B.C. Maritime Employers and others, including the terminal operators, have tabled what they believe to be options in dealing with the labour situations per se. I think that allowing one commodity to continue to flow while other commodities are disrupted by labour disputes does not address the essential problems in the labour dispute itself.
We do not see how one commodity can be treated differently from others, especially given the size of the coal exports and their importance to western Canada.
Senator Maheu: Turning to the issue of replacement workers, the Sims report stated that no one considered the utilization of replacement workers to be a legitimate practice if its purpose was to rid the workplace of union representation or to undermine the role of the union.
Do you think that is a reasonable statement?
Mr. Cunningham: Yes, I accept that as a reasonable statement. However, if an employer were bringing people in to maintain an operation, I believe a union would be able to say that its ability to represent its members was being undermined. Just the fact of those replacement workers being there would have an impact on the other workers.
However, I think other sections of the act which stipulate that the people who were on strike have first right of recall after a strike and that they are guaranteed their employment, and the discipline factor which is taken into consideration in the proposed changes offer protection to the employees and to their bargaining agent, aside from whether employers can bring people in to maintain contracts or even to maintain the property.
Senator Maheu: It has also been suggested that the wording in the bill on replacement workers could lead to litigation. Can you suggest other wording that would avoid litigation?
Mr. Cunningham: I have not looked at the language with regard to wordsmithing. I was more interested in having that section removed.
Senator Maheu: If the amendments you are suggesting were not accepted, would you alter your recommendations or would you prefer that the bill were not passed in its present form?
Mr. Cunningham: I would prefer that it not be passed in its present form.
Senator Cogger: In your brief you state that all commodities should be given equal treatment under the code. If you had your druthers, would you rather have all commodities protected in the way that grain is protected or have none of them protected?
Mr. Downing: Our preference would be to have none of them protected. However, that does not mean that recommendations which are aimed at resolving serious labour problems in the port could not apply to all, such as binding arbitration, for example, to resolve untenable situations that develop.
Senator Cogger: My question was not a facetious one. We heard from the chemical industry last week. Their view is that the special protection afforded the grain industry would leave them stranded, isolated as shippers, if you will, in the sense that they believe, and probably rightly so, that the grain industry is the one that brings pressure to bear upon Parliament to settle labour disputes promptly and quickly and that, once you have given grain special status, the problem could continue. Do you share that view?
Mr. Downing: I share that view. The political sensitivity of the grain industry is a reality. It does attract a political response. It attracts publicity that might not exist otherwise.
The terminal operators are particularly concerned about the possibility of a work stoppage being extended if grain were excluded from the treatment given to all commodities.
Senator Cogger: Have there been many work stoppages in your industry in the last decade?
Mr. Downing: Not many. There are work stoppages. The mines are unionized. The rail is unionized, obviously, so there is a potential for work stoppages at the mines or in the transportation system. They tend to be infrequent.
Senator Cogger: Could you give us an idea of the number in the last 10 years?
Mr. Downing: We have had disruptions on the railways within the last four years. The last major labour dispute at the mines was in 1992, and the next previous one would have been approximately five years before that.
Senator Cogger: Prairie Pools appeared here. According to their numbers, over the last decade the flow of grain to export has been stopped 16 times, resulting in 230 lost days. I accept those numbers. They must know what they are talking about.
According to them, if over that last decade clause 87.7 had been in place giving grain special status, 25 of those 230 lost days would have been saved, or approximately 10 per cent. In other words, clause 87.7, because it relates only to the longshore industry, caused only 25 of the 230 lost days over the last decade. Therefore, for approximately 200 days the movement of grain was interrupted or stopped as a result of other causes, and presumably those affected you as well. When the grain stops, your industry stops too.
Mr. Downing: Yes.
Senator Cogger: Most people did not ask for no protection, but everyone asked for the same protection. More important, I believe B.C. Maritime Employees Association said, essentially, that, if grain is afforded special treatment under the Constitution because it is considered advantageous to Canada and, therefore, must not be stopped, we should cover all the things that may cause it to stop, not just longshoring but the railway and everything else.
In other words, from the grower to the market, any industry that is called upon to move grain along ought to be covered by clause 87.7 and, presumably, would piggyback on some of that benefit. Do you agree?
Mr. Downing: I would think so.
Senator Cogger: If trains must move for grain, they can hardly stop for coal, or maybe they could.
Mr. Downing: The point is that at one time it seemed like grain was going to be the biggest export that Canada would ever have. Three or four decades ago people probably did not contemplate exporting millions of tonnes of coal, but now that is happening. We recommend legislation that aims at promoting those types of thing on a go-forward basis also.
Mr. Cunningham: It is possible to move the grain without moving the coal because they operate in unit trains. Coal will only travel in a coal train and grain will travel with mainly grain shipments.
Coming from Saskatchewan, it is difficult for me to say that I am not in favour of special treatment for grain. However, back-to-work legislation to solve labour problems provides a means for either party in the labour dispute to avoid addressing its responsibilities. In some cases, back-to-work legislation is used by those parties to avoid their responsibility. The more legislation encourages parties to be responsible rather than letting them off the hook, the better off we will be.
Senator Cogger: On the subject of temporary or replacement workers, is it fair to say that in your brief you seem to take for granted that a complaint would be brought before the Canada Labour Relations Board and that a ruling would issue, stating that the hiring was done for the purpose of undermining or whatever circumstance?
Mr. Cunningham: No. The intent of the comments is to say that bringing in replacement workers could give rise to contention. It could involve hearings before the board and possibly litigation following from that. The ruling would not necessarily be in all cases that the union's authority was undermined.
Ms Jacob: According to what we hear from labour unions, they will invoke that provision as often as they can. Therefore, we do start from the premise that they will challenge our position.
Senator Cogger: In your brief you go one step farther. You take it for granted that a complaint would be lodged every time, which is probably fair, and that the complaint would probably be judged to be appropriate or right.
I am not questioning the judgment; I am just trying to find the rationale.
Ms Jacob: From the background analysis that I have done, it seems to me that the Canada Industrial Relations Board has indeed often ruled in favour of unions. Therefore, we do not have a track record that gives us comfort in terms of being able to win some of the challenges that might be placed before the board.
Senator Cogger: I asked the deputy minister to give me an example of where the hiring of temporary replacement workers would not have the effect of undermining then union's representational capacity. It is hard to imagine where that would not happen.
Ms Jacob: Yes.
Mr. Cunningham: In addition to working for the mining industry, I am also a member of the Saskatchewan Labour Board. A few years ago, when Saskatchewan revised its Trade Union Act, they thought it imprudent to proceed with the ban on replacement workers. Therefore, in our deliberations at the board there, we do not deal with this issue.
When you go before a tribunal to make a case, you are not in a court of law; you do not have to prove your case beyond a reasonable doubt; you have a lesser standard of proof. Therefore, it would be difficult for a board not to rule that there was some undermining of the ability of the union to represent its employees under this legislation.
Senator Bosa: What proportion of your members are employed subject to Part I of the Canada Labour Code?
Ms Jacob: I would have to look at the numbers, but we do have a fair number of mines operating in the Northwest Territories, north of 60 degrees latitude, which come entirely under federal legislation.
Other mines, such as uranium mines, are also subject to federal legislation. However, the impact that this proposed legislation would have on our members would be in terms of its impact on the railways and the port system, the entire infrastructure on which the industry depends for the movement of its products.
Senator Bosa: Would you care to venture a percentage?
Ms Jacob: I can get that number to you later today.
Senator Bosa: Are any of your members connected with the longshoring and shipper organizations which comprise the British Columbia Maritime Employees Association, or any other employee association in ports other than on the west coast?
Mr. Downing: The Coal Association membership includes west coast terminal operators.
Senator Bosa: West Coast only?
Mr. Downing: Yes. The only federal mine would be the Cape Breton Development Corporation.
Senator Bosa: The task force found virtually no support among labour and management organizations whose members negotiate under the Canada Labour Code for binding arbitration. In fact, both labour and management indicated that they have found imposed third-party solutions to be unsatisfactory. Would you be in favour of binding arbitration?
Ms Jacob: That is hard to say.
Mr. Downing: The coal industry itself would not have a recommendation on that issue. We would rather let the employers address that matter.
The Chair: One of the mining operations brought to our attention final offer selection as a last resort. They would prefer, if nothing else came of this, that final offer selection would be granted to them. How do you feel about that?
Mr. Downing: I have no comment.
Ms Jacob: I do not have a comment either.
Mr. Cunningham: As my background is in labour relations, I can tell you that there is a variety of ways to achieve resolution of labour unrest, whether that be binding arbitration, mediated settlements or final offer selection. There seems to be a growing variety of dispute resolution methods, be it final offer selection or multi-party documents where they do nothing but complain until they are effective and accepted by all parties.
I come back to the comment I made earlier: The more things we do to force parties to be responsible for their own actions in accepting or rejecting offers and in resolving their own problems, the better off we will be in the long run. If a third party imposes a resolution, then neither party will, one, accept responsibility, or, two, be happy with the result.
The Chair: I have read part of the Sims Task Force Report. The authors of several documents which have come to my office have stated that, if the government had chosen Sims' recommendation with regard to replacement workers, they could have accepted that. In fact, the first sentence of the recommendation states that there shall be no general prohibition on the use of replacement workers, and then it goes on to discuss findings by the board, and so on. If that sentence had been left in, would it have been more acceptable to the public?
Mr. Cunningham: We would still have some concerns about it, but we would have preferred that over the present wording.
Senator Cools: I had the impression that you were a bit frugal in your remarks because you were concerned about time. You said that you had chosen to focus on your two most pressing concerns. Perhaps you need not be so frugal. Could you share with us what other concerns you have with the bill.
Ms Jacob: Two concerns come to mind immediately. One is the access to off-site workers and the freedom given to unions to access people's home phone numbers and addresses for the purpose of enlisting their support. That is one concern.
Senator Cools: Can you tell us why?
Ms Jacob: Unless there were clear conditions contained in that provision, then I do not think there should be a blanket authority giving unions access to off-site workers. I have not spent much time on this issue, so please forgive me if I do not go into too many details. In reading the bill, I was concerned about unions being given that right.
Senator Cools: Does any other organization have that right, as far as you know?
Ms Jacob: No, not as far as I know. I know that it often arises in labour discussions, but I do not think it is a right that has been granted yet.
Senator Cools: In other words, if a charitable organization wanted to raise money to end a terrible disease, could it appeal to some tribunal and request that, for its noble purpose, the names and addresses of everyone be given to it?
Ms Jacob: I am not sure, but I do not think so. I think some authority has to be given by the person whose address is being requested.
Senator Cools: Am I hearing you say this is quite unprecedented and unique? That is what I am hearing you say. I just want to make sure I understand your concerns.
What was your other concern?
Ms Jacob: The other concern is the removal of the obligation on unions to provide information on their finances, and so on. Statistics Canada used to collect information on the unions, or unions used to provide information on their contributions, membership, and financial statements. I gather from the bill that unions would no longer be obliged to provide that information, which would allow them, in our view, to operate in a more secretive fashion than have in the past.
Senator Cools: For our record and for our enlightenment, perhaps you could tell us which clauses are behind your concerns, if you have them at hand.
The Chair: Clause 54.
Senator Cools: Are you saying that would allow or permit or encourage more secrecy on the part of the unions?
Ms Jacob: Not allow, permit or encourage, but it certainly would make it more difficult for employers and associations such as ours to access that information.
Senator Cools: Clause 42(2.1) says:
No employer or person acting on behalf of an employer shall use, for the purpose of undermining a trade union's representational capacity, the services of a person who was not an employee in the bargaining unit...
The Chair: That clause relates to replacement workers.
Senator Cools: I understand it very well. I was wondering if someone could tell me what "undermining a trade union's representational capacity" means. I would submit that just about anything could undermine anyone's capacity to do anything. What does that mean?
Mr. Cunningham: The term is extremely vague and, therefore, it concerns us greatly that it could be twisted, turned, or broadened to mean almost anything.
Senator Cools: Madam Chair, is there any jurisprudence or opinions on how that phrase could be interpreted in any of the research material that has been put before the committee?
The Chair: Not at this point, but we could ask for some.
Senator Cogger: If this will help the debate, I might point out to Senator Cools that in answer to a similar question the representative of the Canadian Labour Congress had no idea.
Senator Cools: Perhaps there is some jurisprudence or opinion somewhere that could help us understand what it means. It does read seem to me to be rather oddly.
The Chair: The advice I have received is that it is "brand-new language," so perhaps we do need an interpretation.
Senator Cools: I would be curious to find out.
The Chair: I should like to thank the witnesses for their presentations this morning and for pointing out to us the concerns of the mining industry.
Honourable senators, I should like to welcome this morning Messrs Chipeur and Wakeling who are partners in the law firm of Milner Fenerty.
Please proceed.
Mr. Gerald D. Chipeur, Partner, Milner Fenerty, Barristers and Solicitors: Madam Chair, we are grateful for the opportunity to appear before the committee today and to address a number of issues of concern to Echo Bay Mines Ltd., which is an Edmonton-based international mining organization, and Kennecott Canada Ltd., which is also a mining company with extensive interests across Canada.
Our clients have a number of concerns, but we should like to address three major issues this morning, all three of which relate to the individual rights of the employee. They relate to our particular clients' employees as well as to the Constitution of Canada.
A number of other witnesses whom you have heard over the last few days have addressed this bill from a legislative or administrative perspective, regarding the common law, how one should interpret the law and whether this particular legislation is good policy. We are here today not to talk about policy or the common law but to address three fundamental constitutional questions which we think this body needs to address.
I refer the committee to a 1960 decision of the House of Lords in Belfast Corporation v. O.D. Cars Ltd. In that case, Lord Radcliffe pointed out that the Senate, the House of Commons and the courts had a responsibility to protect the rights of the individual and, in particular, the property rights of the individual. That is important here because this proposed legislation could potentially have an impact on the property rights of individuals, our employees, who have contracts of employment with our clients. Those contracts of employment have been considered by the courts to be property rights. Thus, we are talking about property rights here this morning.
We are concerned about the importance of guaranteeing individual liberty by maximizing economic freedom for individuals. Lord Radcliffe said in the Belfast case that the protection of property rights is important to the guarantee of individual liberty. He stated, in part:
It would be a mistake to look on it as representing any conflicts between the legislature and the courts. The principle was, generally speaking, common to both.
It is for that reason that we should like to highlight those issues for you this morning. I will address two of them very briefly. Then I will turn the floor over to my partner, Tom Wakeling, who will address the greatest concern with this particular bill as it relates to the Constitution.
The first two issues fall under section 7 of the Charter of Rights and Freedoms, that is, the guarantee of security of the person. We have grave concerns that the privacy intrusions in this bill, in particular in clause 109.1, are such that, if a board were to order that the names and addresses of individuals in society be disclosed to a third party without those individuals' consent, that would represent a direct intrusion by government. You have the implication of the Charter and, therefore, a section 7 problem, because the security of the persons could be infringed. Their right to privacy, all of which is included in section 7 of the Charter, could be impacted.
Our second concern is a general interpretive concern. The Supreme Court of Canada has made it clear that, when legislation is ambiguous as it relates to rights of individuals, particularly under section 7, such ambiguous law will be struck down.
If this bill is passed with the ambiguity that currently exists with regard to replacement workers and if replacement workers are hired in a particular situation, then an employer may not know whether it is breaking the law. If it does break the law, it is subject to the penalties of the law. Therefore, section 7 may be implicated.
The third issue that I will defer to my partner Mr. Wakeling is the question of the democratic principle of majority vote.
Mr. Thomas Wakeling, Partner, Milner Fenerty, Barristers and Solicitors: Madam Chair, I hope the clerk has distributed to each senator our submission, entitled, "Submission of Echo Bay Mines Ltd. and Kennecott Canada Inc."
The thesis of this paper is that a provision in the Canada Labour Code which authorizes the Canada Labour Relations Board, as it is now known, to certify a trade union without conducting a secret representation vote violates the primary values enshrined in the Canadian Charter of Rights and Freedoms. Neither the current legislation nor Bill C-66 compels the Canada Labour Relations Board, before granting an application for certification, to satisfy itself that a majority of employees in the bargaining unit have voted at a secret representation vote to select a trade union as their bargaining agent.
The Charter comes into play because the code forces workers, who are not union members and who do not wish a trade union to bargain on their behalf, into an unwanted association with a certified trade union. One is speaking here of a forced association because a certified trade union represents all the employees in a bargaining unit, not just those who have asked the union to bargain on their behalf.
A forced association violates the constitutional provisions enshrined in section 2(d), which states that everyone is entitled to freedom of association.
The thesis of this document is that the Canada Labour Code, in order to comply with the Charter, must contain a provision that requires the board to conduct a secret representation vote before granting a certificate to a trade union.
This issue as to whether it is wise to endorse a secret ballot representation vote was addressed by the task force led by Andrew Sims. At page 62 of the task force report, it states:
The card-based system has proven to be an effective way of gauging employee wishes and we are not persuaded that it is unsound or inherently unconvincing to employers. It requires a majority of all workers, not just those who vote. It reduces the opportunity for inappropriate employer interference with the employees' choice. Setting up an effective polling system to fit all cases in the federal jurisdiction would be difficult, even though there could be opportunities for collaboration with provincial boards, many of which already have established polling facilities.
Let me take a minute to outline for you the current certification procedure under the Canada Labour Code. The current procedure compels the board to conduct a secret representation vote where "a trade union applies for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, and the Board is satisfied that not less than thirty-five per cent and not more than fifty per cent of the employees in the unit are members of the trade union." In those situations where a trade union, in support of its application for certification, has demonstrated that the support for the union is somewhere between 35 per cent and 50 per cent, the Canada Labour Relations Board will direct that a vote be held.
The code states that the board shall determine the result of a representation vote on the basis of the ballots cast by the majority of employees voting. If it did order a vote under section 29(2), it would tabulate the vote, and the outcome would be determined by the majority.
The Canada Labour Relations Board may also record a representation vote if a trade union presents evidence that in excess of 50 per cent of the workers favour the union. However, I can tell you that this is a jurisdiction rarely exercised by the Canada Labour Relations Board. It is my understanding that approximately 12 per cent of certification applications are disposed of by the Canada Labour Relations Board utilizing the secret ballot representation process.
It is our thesis that the Canada Labour Relations Board does not have the constitutional mandate to certify a trade union unless the trade union has secured the support of a majority of those voting in a secret representation ballot.
What is the status of the law in the rest of the country? Alberta, Manitoba, Ontario, Nova Scotia and Newfoundland require that the boards administering the legislation in those jurisdictions hold a secret ballot vote. There is a provision in the Newfoundland legislation that allows the vote to be waived if both the employer and the union agree that it is not necessary.
British Columbia's legislation for 1984 to 1992, inclusive, mandated the holding of a secret ballot vote.
Workers in Manitoba most recently received the right to cast a ballot to determine whether they wished to have a trade union represent them. In May 1996 the Minister of Labour rose in the Legislative Assembly of Manitoba and indicated the nature of some of the amendments that were being made. This passage appears at page 3 of our brief. The minister stated:
I am proposing six significant amendments to the act today. The first deals with votes relating to the certification of a new union. $in any case where an application for certification meets the threshold level of 40 percent of employees, there will be a government supervised secret ballot conducted under the auspices of the Manitoba Labour Board, and the vote must be held quickly. From the union standpoint, this new regime will ensure that all newly certified unions will be seen as fully legitimate. From the standpoint of employees, union and management, the quickness of the process will minimize disruption and uncertainty. The basic reference point here is clear. When in doubt, union members should decide in a fair and open way. That is the basis of democracy. It is accepted by people around the world, and it reflects the values that Manitobans share. There should be no objections to this amendment from anyone, because that basic reference point is clearly and patently democratic and fair.
The amendment which the Minister of Labour was addressing became law in November 1996 and came into force on February 1, 1997.
When Ontario considered this issue, those who spoke in favour of it echoed much of the thinking of the Manitoba Minister of Labour when he introduced his bill. The Ontario Minister of Labour indicated that, with the introduction of a mandatory secret vote, each individual would now have the democratic right to choose whether they wanted to be represented by a trade union.
There was considerable enthusiasm in the Ontario legislature for this amendment. Let me read to you what one of the members, Mr. Arnott, stated in the legislature:
The secret ballot is perhaps the most important and fundamental aspect of our democratic political system, allowing voters in local, provincial and federal elections the right to make their choices for the election of governments with privacy and free from coercion.
Now this legitimate democratic right will be enshrined in our labour laws through Bill 7 and extend to employees in their workplaces so they can make important decisions about joining a union, approving a contract or concerning a strike without fear of pressure or intimidation from unions or management so that the will of the majority will prevail.
Nova Scotia introduced mandatory secret ballots in 1977. The Minister of Labour asked: "...who can argue against democracy?"
In Alberta, our home province, the labour board has conducted approximately 1,000 secret representation votes since the late 1980s. You might find it interesting to review a table which records the results of Alberta's experience with mandatory secret representation votes. This table appears at page 5 of our brief.
In the left-hand column we see the reporting year, which I believe expires on March 31 of each year. The next column indicates the number of elections won by unions, then the percentage of elections won by unions, followed by the percentage average turnout. Let me go through a couple of years so that there is no misunderstanding as to what this document tells us.
In the inaugural year 54 elections were held. The unions won 44, for a winning percentage of 81, and the average turnout was 82 per cent. In 1994-95 94 elections were held, of which the unions won 57. The percentage of elections won by the unions was 61 per cent, and the average turnout was 86 per cent. That gives a student of the Alberta experience a record of what happens when a secret representation vote is utilized.
Students of Canadian labour law are aware that the Canadian tradition has its roots in American legislation. In 1935 Congress passed the National Labour Relations Act, which is popularly known as the Wagner Act, whereby it authorized the National Labour Relations Board to settle representation controversies by a secret ballot. By 1939 Americans had concluded that secret votes were the most satisfactory method of determining workforce support for union representation.
To give you an idea of the extensive experience our southern neighbours have had in this process, we have set out at the bottom of page 6 and at the top of page 7 available data from the United States. Let me take you to the last entry on the table at page 7, for the year 1995 -- and this is preliminary data that we obtained from Washington. There were 2,911 elections; the union won 1,468; the percentage of elections won by unions was 50.4 per cent; the number of employees eligible to vote in that recording period was 192,000. That gives you the back drop for the constitutional argument that we are making.
Why is it necessary from a constitutional perspective to make the amendments to the Canada Labour Code which we submit are required? The argument is infused by the adoption of basic democratic principles. We say that it is appropriate to insist that Parliament introduce the secret ballot to the certification process because the workplace is, as Justice Wilson observed in the Lavigne case, a mini-democracy. We point out that the analogy that Justice Wilson favoured was adopted by the Ontario Federation of Labour in a 1969 submission to a royal commission inquiring into labour disputes in the province of Ontario. The federation stated in 1969:
Unions have brought constitutional government into industry. The collective agreement is an industrial constitution and all workers benefit by the citizenship it confers. Without unions and collective bargaining, industry would be a dictatorship of the employer.
American federal law imports democratic principles. The Wagner Act utilizes majority rule. The Wagner Act embraces secret vote doctrines. The majority rule principle runs deep in the American psyche.
Near the bottom of page 8 of our brief, there is an extract from the testimony of the then United States Secretary of Labor when appearing before a United States Senate Committee on Education and Labor in 1935. He stated:
There was then one instance where the employer held the view that his employees did not wish to be represented by the union which was claiming to represent them, and some member of the Board suggested in a perfectly simple way, why not take an election, take a vote, and see whether they want to be represented by this union or not. The vote was taken, and at that time no one ever raised the question as to whether the majority ruled or not. It was taken for granted that in elections in America habit is so fixed upon the idea that the majority rules that the question was not raised.
The Chair: I must interrupt you. In the interests of time -- and I know that you have other points to make -- perhaps you could condense your presentation a bit.
Mr. Wakeling: I certainly can.
Senator Cools: Since this group has done a lot of work, perhaps I could move that their documents be taken into the record as read.
The Chair: We want to hear about other issues where you feel the Charter is involved, and then we will have time for questions.
Mr. Wakeling: I certainly want to make sure our other points are heard.
If you read our brief, I think you will see that the courts have recognized that the Charter protects not only the right to associate but also the right not to associate. The right not to associate can be just as important as the right to associate. Problems can arise in that regard because in a workplace the trade union, once certified, speaks on behalf of all the workers, not just its members.
It is important to note, when looking at this issue, that the United Nations Universal Declaration of Human Rights contemplates that no one will be compelled to belong to an association.
There is a basic principle at stake here. One does not certify a trade union in compliance with Charter principles unless there is a secret representation ballot. There is a provision in Bill C-66 which does not deal with this issue in the fashion that I was looking for, in that there is not an attempt to rewrite the certification procedures in the code. Clause 46 of the bill is the provision which we say runs straight into the constitutional policy which we have just spent some time setting out.
Clause 46 states:
99.1 The Board may certify a trade union despite a lack of evidence of majority support if
(a) the employer has failed to comply with section 94; and
Section 94 is an unfair labour practice provision.
(b) the Board is of the opinion that, but for the unfair labour practice, the trade union could reasonably have been expected to have had the support of a majority of the employees in the unit.
It is our submission that that provision does not comply with the Constitution.
A recent example of how that provision would work in practice is seen in a decision of the Ontario Labour Relations Board early in 1997 wherein that board certified a union as the bargaining agent for workers in a Wal-Mart store in Windsor even though, on a secret representation ballot, the vote was 151 against union representation and 43 for union representation. What happened in Wal-Mart might be introduced into the federal arena if clause 46 were to remain in Bill C-66.
We suggest that there are much more effective remedies for unlawful employer conduct than a determination that a group of workers will be represented by a trade union.
Senator Cools: Are you proposing that we delete or defeat that clause of the bill?
Mr. Wakeling: I ask that you delete clause 46 on the basis that it is unconstitutional. I also urge the committee to consider revising provisions of the Canada Labour Code to require that the Canada Labour Relations Board be satisfied that, of those who vote at a secret ballot representation vote, a majority favours the union.
Senator Cools: Do you have a specific idea as to where that amendment could be placed in the bill, and can you suggest wording?
Mr. Wakeling: We have prepared a draft, but I do not have it here today. It is an amendment relating to more than one provision, as you can imagine. This is a core part of the code, and there are provisions throughout dealing with certification. If one were to make the change that we suggest, a number of consequential amendments would have to follow. We have prepared a draft and I would be happy to give it to you. I just do not have it with me now.
Senator Bosa: Will you send it to us?
Mr. Wakeling: I would be delighted to do that, Senator Bosa.
Senator Beaudoin: I have just one question. I follow your reasoning from the beginning to the end.
Mr. Wakeling: From a constitutional scholar of such rank, I am delighted to hear that, senator.
Senator Beaudoin: I have no objection to a secret vote; on the contrary. While it is not expressly set out in the Constitution, I think it is protected by the conventions of the Constitution and by the statutes. You conclude that the right to associate includes implicitly the right to a secret vote. You say that, pursuant to section 2 and section 7, the right to a secret vote is part of the right of association. Is that your reasoning?
Mr. Wakeling: That is right, sir. If one has the right not to associate, it must follow, we suggest, that, when one creates a legislative regime that places a worker in that situation, one must follow the course that is least invasive of the worker's individual rights. We recognize that, if you have a secret ballot, it is conceivable -- and it happens most of the time -- that the vote will be in favour of union representation. The data we generated shows that in America more than 50 per cent of the votes are won by unions. In Alberta, the number is much higher, and in Nova Scotia I understand the number is around 70 per cent.
However, if you force the minority of workers into a relationship that they do not favour, the way to justify doing that, which is the least invasive of their rights, is to give everyone a say let the majority rule. That basic principle is followed in any other aspect of our community when important democratic questions are being decided.
Based on the forced association interest which the Charter acknowledges, we suggest that, to identify a bargaining agent, we must utilize the method which will have the least impact on the rights of individual workers. The mechanism which we have developed in North America and in the United Kingdom is the secret ballot, which is a democratic principle that goes hand in hand with majority rule.
Senator Beaudoin: I am quite sympathetic to your thesis that the right to associate should include, implicitly, the right to have a free vote. I have no problem with that.
Mr. Chipeur: I think you have to look to section 1 of the Constitution Act as well. Section 2(a) guarantees the right not to associate. In order to take away that right, which is what you are doing when you certify a bargaining agent, you have to justify your action by invoking section 1. That is where the right to vote comes in. By having a vote, you give the employees their democratic rights and then, under section 1, you find justification in "a free and democratic society." Therefore, you have to read sections 1 and 2 together.
Senator Beaudoin: I agree with the thesis. My only problem is that, when the Supreme Court was asked to rule on freedom of association, it came to the conclusion that "freedom of association" did not necessarily include the right to strike.
Mr. Wakeling: That is right.
Senator Beaudoin: You say that, because the right of association is in the Charter, implicitly it means that the right to a secret vote is protected. I hope you are right. I could not agree more, but so far there has been no decision of the Supreme Court on that.
Mr. Wakeling: There is no decision of the Supreme Court which deals with this issue.
Senator Cools: I am always fascinated by how simple, basic, fundamental rights and principles became so complicated with the introduction of the Charter.
Every corporation has an annual meeting to elect its board of directors. The principle of representation by ballot and by vote is so firmly established, I would have thought, in common law and in statute, that I am amazed that this set of arguments have has to be developed to convince that the self-evident is true.
I am a Liberal, as you know. The Liberal Party had a Prime Minister who was quite a proficient authority on industrial relations. His name was William Lyon Mackenzie King. He wrote one of the great expert books on the field of industrial relations at the time, entitled Industry and Humanity. I believe he did it was a research project for one of the Rockefeller institutes. Mackenzie King was very much at the cutting edge of industrial relations. So some of these principles were laid out for us a long time ago. I would have thought it was self-evident that certification of a union would be premised on the fact that that union had majority support from the employees on the job membership.
Senator Maheu: You indicated that five provinces deal with certification matters by a method similar to that in the Canada Labour Code. Is that right?
Mr. Wakeling: Five provinces contemplate that the primary method of determining whether the union has majority support is a secret ballot. Alberta, Manitoba, Ontario, Nova Scotia and Newfoundland utilize a secret ballot.
Senator Maheu: Were you referring as well to the card system?
Mr. Wakeling: No. Under the Canada Labour Code, the Canada Labour Relations Board does have the jurisdiction to order a secret ballot vote, but it would work as follows: If the union filed evidence in support of its application for certification indicating that 40 per cent of the workers favoured union representation, there is a provision in the code which would allow the board to process that certification application because more than 35 per cent of the workers had signed cards. In that model fact situation, the board would be required to order a secret representation vote. However, the Canada Labour Relations Board does not have order a secret representation vote if the union submits evidence that more than a majority of the workers have signed cards and, therefore, support the union.
According to the information I have, which might be a year or two out of date, roughly 12 per cent of certification applications under the Canada Labour Code are disposed of by an order of the board that there be a secret representation vote.
Senator Maheu: The card system has never been challenged under the Charter if what you say is correct. Why not?
Mr. Wakeling: That is right. As far as I am concerned, we do not have a court decision that deals with this issue. There have been occasions when the Canada Labour Relations Board dealt with this issue without it having been argued by counsel presenting the case. A recent decision issued in a letter form dismissed the argument in a sentence or two. However, as far as I am aware, there is no judicial decision that deals with this issue.
In our view, the card system is not a reliable indicator of workers' wishes. This view is inconsistent with that expressed by Andrew Sims in his paper entitled "Seeking a Balance". We submit that it is not a reliable indicator; it is certainly not a democratic one.
I refer to a passage at page 16 of our brief taken from a 1979 decision of the Canada Labour Relations Board in Communication Workers of Canada v. Communications Union Canada. This case involved a controversy between two trade unions, each of which said that it represented the workers. It was a raiding case, as distinguished from an application for certification, where the controversy raged between employees who wished to be represented by a union and employees who did not want to be represented by a union. The Canada Labour Relations Board stated:
Our rule with respect to the taking of votes, even when a union has a majority at the time when it files its application, takes account of the fact that the employees are torn between several unions and are subjected to a great deal of pressure. In such circumstances, we have often seen different unions display a majority support from the same employees. Experience has taught us that in cases of union raids, a vote should be ordered so that employees may choose freely, within the privacy of the polling booth, which union they wish to have as their representative.
That was a dispute in the context of inter-union rivalry, union A against union B, both fighting for the hearts and minds of the workers whom they sought to represent. We suggest to you that the same problem arises when a union is seeking the support of the workers and some workers do not support the union.
We have cited another case at page 16 of our brief in which it is observed that it is not uncommon for employees to sign membership cards with two unions. There are certainly occasions where employees sign union cards and the next day sign a petition saying that they do not want a union.
I raise these cases to alert you to the problems associated with the card-based system. In our submission, the preferable way, by far, to proceed is with a secret ballot, which is a system that is in accord with our basic democratic principles.
If politicians could go door-to-door and ask voters to sign cards of support, I suspect that in a good many ridings in this country you would have more than one candidate showing up at the Chief Returning Officer's door saying, "I have the support of a majority of the voters. Please declare me elected." I suspect there might well be three candidates in some ridings who could do that.
Senator Cools: First, let me thank you for what I thought was an extremely exhaustive and well researched presentation. You have raised, among other things, the inadequacy of the card system, but even though the card system is better than what this bill is proposing. The card system, which you have clearly shown to be inadequate and imperfect, is superior to what is being proposed here.
This is extraordinary: the board may certify a trade union despite a lack of evidence of majority support.
The Chair: Our time is up. Thank you for your presentation.
Mr. Chipeur: Madam Chair, we knew we did not have much time. We will leave two documents with the committee for reference. One is entitled: "Canadians and Unions: A National Survey of Current Attitudes", by Dr. Reginald Bibby, which is based upon an Angus Reid survey. Also, we have left with you the annual report of Echo Bay Mines, as well as a letter to you from the Chamber of Commerce.
The president of the Alberta Chamber of Commerce, who was not aware of these hearings, has asked me to inform the committee that, if you do have the time to hear from the Alberta Chamber of Commerce, she would welcome the opportunity to appear before you. That organization will be following up with you directly.
The Chair: We will continue with Mr Bruce Phillips, the Privacy Commissioner of Canada.
Mr. Bruce Phillips, Privacy Commissioner of Canada: With me is the general counsel for the office of the Privacy Commissioner, Holly Harris.
I was called late last week by a member of this committee to inquire whether our office would have any observations to make on clause 50 of the bill, which would replace section 109 of the Labour Code. I must confess that we had not previously examined that part of the bill. We had other concerns with Bill C-66, however, which I had addressed to other parties and felt that the answer we got was terminal.
I will deal first with the question as to whether we have any concerns about the language in clause 50 replacing section 109 of the code. The answer is: Yes, we do. We are grateful for having had this brought to our attention.
Clause 50 states, in essence, that unions will be able to communicate with off-site workers at the order of the board and in a manner that the board will prescribe. This clause, essentially, is intended to take account of the changing nature of the workplace and the fact that so much more work is now being done at home. It raises a novel issue, in terms of labour-management relations, from a privacy perspective because, generally speaking, communications between unions and employees have taken place either at the employer's premises or at the union's premises. Here we have a situation where there is both a personal and a professional dimension because, in the privacy context, the location of person's home is personal information. Some people may take serious objection to having personal information with respect to their address and place of domicile made available to a union.
What is missing, as we see it, in clause 50 is the element of consent. Under the federal system, employees working for federal agencies and departments, of course, supply their names and addresses to their employer, but the employer does not convey that information to the union. I think the union is generally left to its own devices to obtain that information. Clause 50 would set up a different regime altogether for people who work out of their homes, as a consequence of which, if the privacy element of an employee's relationship with the employer were to be preserved, consent would be required before personal information could be conveyed to the union.
How that should be done or whether there is some other more practical or convenient means is perhaps a subject for discussion. The clause itself does recognize the privacy element because, two or three paragraphs down, it mentions privacy.
I notice also that the Canadian Bankers' Association, in a brief presented to you at an earlier stage of your hearings, has drawn attention to the same point, and I presume members of the committee are familiar with what they had to say.
The Chair: You are referring to proposed new section 109.1(4).
Mr. Phillips: Yes:
The Board must include as part of the order made under subsection (1) the conditions that must be met in order to ensure the protection of the privacy and the safety of affected employees and to prevent the abusive use of information.
That sounds pretty good on the face of it. I would only say that leaving to a board such as this the determination of what is and what is not a privacy right concerns me somewhat. It has not been our experience that boards are the best types of agency to determine these things. They generally do it without consultation. In fact, we are presently locked into something of an argument with this very organization, the Canada Labour Relations Board, over another aspect of privacy. I think the term should be further defined. There should be guidelines. There should be some direction, in my view, for the board to consult with the Office of the Privacy Commissioner or with the Department of Justice.
That is about all I have to say on that subject, unless there are some questions.
Senator Maheu: I just want to make a comment and to ask for your comments in return. Large retailers, banks and other financial institutions appear to have no difficulty in obtaining mailing lists of names and addresses of potential clients. Having been contacted by them on several occasions, I have never given consent. Would it be reasonable to deny other organizations such means of communication, especially with employees who may not realize the impact of a union being allowed into the workplace, without those persons' consent?
Mr. Phillips: If I understand correctly, you are asking whether, in view of the fact that banks and other commercial organizations seem to have ready access to people's personal information, including names and addresses, it is reasonable that unions should be deprived of the same access? My answer to that is: Let us not make a bad situation worse. You have identified one of the primary concerns affecting people's personal privacy that is now current in our society, which is the massive use of personal information by commercial organizations without the knowledge or consent of the subjects. We have to deal with that and deal with it quickly.
Let me say that the Government of Canada is well aware of this problem. The Minister of Justice, in an important statement last September, which unhappily did not get the attention it deserved, has committed this government to bringing in a comprehensive national privacy bill by the year 2000, which will bring under the ambit of privacy law the commercial sector that is affected by the Parliament of Canada. I regard that as perhaps the most important privacy development in the last 25 or 30 years. Presumably, such a piece of legislation will try to deal with the very problem that you have identified.
However, the fact that banks or other commercial organizations are doing something they ought not to be doing does not, in my view, constitute an argument for making it worse.
Senator Cools: Maybe I am not understanding Senator Maheu's question. She said that currently a bank can release personal information about its own clients. My understanding is that that is not so.
Senator Maheu: They get lists.
Senator Cools: However, in this bill the board may make an order with regard to a company's own employee base. That is different from what you are asking.
Senator Maheu: These lists seem to be readily available to everyone.
Senator Cools: I know what lists you are speaking of, and I am very interested because my understanding is that currently there are prohibitions against banks releasing information about its own client base.
Mr. Phillips: You are partly right, Senator Cools. The banks do operate under confidentiality laws which prohibit the disclosure of clients' account information and some other things, but the laws with respect to information in the hands of banks and other commercial enterprises are far from comprehensive. There is much information that banks can do with as they will, which is derived from their customer databases. So the answer to your question is: partly yes, partly no.
Senator Cogger: I have not so much a question but a comment. I suggest to you, Senator Maheu, that getting junk mail or unsolicited mail, whether it comes from a bank or Wal-Mart, is an entirely different kettle of fish from having enthusiastic union recruiters knocking at your door after having received your address from your employer. This could be legislated, if you please.
I think the Privacy Commissioner is quite right: If the situation is bad, let us not make it worse by throwing into the act a legislated situation where personal data would be handed over to unions.
Indeed, in reply to one of my questions, the Canadian Bankers Association indicated they would be quite happy with an amendment by which they would comply with the provisions of clause 50 by turning over a list of off-site workers to the board, with the proviso that the board would then have the responsibility of seeking the consent of each individual member listed thereon before they would release the information.
Would that provision meet your concerns?
Mr. Phillips: Senator, I think it would. The underlying principle of all personal informational transactions is transparency and consent of the person concerned. While I would not put myself forward as an expert on the finer points of labour relations, I can see that the intent in this bill is to provide for smooth labour-management relations, which is reasonably consistent with ongoing practices. However, I think the drafters of the bill failed to see the discriminatory difference that has been embodied in this bill. If consent can be built into the process -- and you have suggested one method of doing so -- I think that would satisfy the privacy question, yes, sir.
The Chair: Mr. Phillips, do you have another point that you would like to make to the committee?
Mr. Phillips: Yes. It has to do with clause 54.
With regard to this clause, the Canada Labour Relations Board is asking Parliament to pass a clause which, essentially, would set aside the Privacy Act altogether with respect to a portion of the CLRB's work, namely, the records and notes of hearings and tribunals. Let me give you a little background on this subject generally.
The status of notes made at hearings and tribunals by the members of various boards and agencies that are emanations of the Parliament of Canada have been in dispute between my office and various other offices for some time. It is our view that, if a person appears before a tribunal and notes, observations and other records are made concerning that person, in accordance with the Privacy Act, that is personal information concerning that individual. Subject to the various exemptions in the Privacy Act, the person has access to those records.
We received a complaint a couple of years ago from a person who sought access to such notes from a CLRB hearing and whose request was denied. The complainant was referred to our office. We investigated the complaint and came to the conclusion that that person should have access to the notes. Our recommendation was not accepted, and we wound up in the Federal Court.
A judgment was brought down in which the Federal Court agreed with the CLRB. The CLRB won its case. The case is currently under appeal. There were other factors in the court's ruling that concerned us, beyond the mere question of whether the notes in this particular case should be accessible. The court held in those circumstances that those notes were beyond the purview of the Privacy Commissioner.
Let me make the distinction between what may be accessible or not accessible under an exemption to the act and whether we can see them at all. The Privacy Act sets out that the Office of the Privacy Commissioner, in the course of investigating complaints, has access to all the files concerned with the complaint. There are very few exceptions to that, cabinet confidences being one of the few.
It is our position that, even if the court held in that particular case that those notes were subject to exemption under the act, our office should still have access to the files themselves to make a determination. We are appealing that judgment.
I wrote to the Minister of Labour pointing out our dissatisfaction with clause 54. We did not feel that any particular department should have the right to seek such a complete, total, absolute set-aside of the Privacy Act and that, in any case, since the judgment itself was under appeal, it would be better to let the court process work its way through before seeking the approval of Parliament for such a comprehensive set-aside.
I note that the committee has received this morning a letter from the Office of the Information Commissioner over the signature of Daniel Brunet, who is their general counsel, making the same objection.
I appeal to this committee not to approve this particular clause. Vitiating the Privacy Act in such an absolute way, in my opinion, certainly does not respect the spirit of the Privacy Act. With a case dealing with this very issue currently under appeal before the courts, it seems to me that this action is premature.
I could make a more general observation about a growing practice which my office has detected among departments generally. I do not think it represents a policy on the part of the Government of Canada, but it is more a matter of administrative convenience concocted by bureaucrats. In putting clauses of this kind into legislation laid before Parliament and before the eyes of extraordinarily busy ministers without, I think, explaining all the ramifications thereof, they seek to build in their own little set-asides and exemptions from statutes such as the Privacy Act.
I remind this committee that the Office of the Privacy Commissioner is an office of Parliament. It tries to enforce an act which speaks to a basic civil right in this country-- that is, the right to a decent private life. That right is sanctified by the Universal Declaration on Human Rights and by the European Covenant on Human Rights. I will not run through the whole catalogue of international covenants which govern this area, about which the Supreme Court of Canada has said, although it is not specifically included in the Charter, it is a Charter right by implication.
To have departments forgo the necessity of observing an act which speaks to a very basic necessary right, the right to personal freedom and uniqueness, without which our society would be radically transformed, for, in my opinion, the sake of their own convenience is an absolutely abhorrent practice about which committees of this Parliament ought to say, "Stop, now. We are not in business for the convenience of bureaucrats; we are in business for service to the public of Canada."
Senator Cools: I would ask Mr. Phillips to amplify on one point. He referred to officers of Parliament, which include the Privacy Commissioner, the Chief Electoral Officer and others. Since I believe that we are now in a status of forgotten history in this country, where many no longer know of the unique positions occupied by the electoral officer and the privacy commissioner, could you take a moment to explain that to us?
Mr. Phillips: I would be more than happy to do so. The term "officer of Parliament", although it conveys no special privilege except that I can get a friendly tribunal here sometimes, was intended by the Parliament that created us to signify that we function as organizations independent of the executive and that we report directly to Parliament. I have no other masters than the House of Commons and the Senate. My annual report goes directly to the Speaker of each house.
My office, the Office of the Access to Information Commissioner, and the Commissioner of Official Languages are frequently engaged in investigating complaints against departments of government, as a consequence of which it is necessary to establish our independence of any particular department. The other offices of Parliament are the Office of the Auditor General and the Chief Electoral Officer. There are five in total.
Senator Cools: Members of our committee should be aware that these are five unique positions, and that they are really servants of Parliament.
Mr. Phillips: Of all our functions, the one that I regard as most important is our function to advise Parliament on privacy matters of which we think it should be aware, both in terms of the general impact on personal privacy of changes in society at large -- which brings into mind the whole issue of technology and how that is affecting privacy -- but most especially of things that are under the purview of the Parliament of Canada that have a bearing on privacy. This is one of them.
Here we have a department of government which, with respect to our operation, is saying that we will not be covered by the Privacy Act. I do not think that the framers of this act or the Parliament that passed it or this Parliament, for that matter, if it were fully apprised of the problem, would approve of this line of activity on the part of a department of government.
Senator Cools: You used an expression which I have used a lot -- and, bless his soul, the late Senator Eugene Forsey used to talk a lot about this issue of administrative convenience of departmental staff. Can you amplify on that for me, please?
Mr. Phillips: If you are not accountable to anyone, it makes life a whole lot easier. One of the purposes of the Privacy Act is to provide an element of accountability for the actions of departments and for the management of personal information.
The departments of government of this country, on average, hold your name, senator, and mine, in 25 or so different places and a good deal of other personal information. Reckless or inconvenient use of that information is dangerous to the privacy health of the Canadian public. Hence, we have an act which states that the government will not collect information about you without telling you what it is they need. They will only collect information when they need it to run a program. You will have access to that information and a right to correct it if it is wrong, and that information will not be disclosed or used for other unrelated purposes without your knowledge and consent.
I admit that there can be occasions when that law provides an obstacle to something which a department wants to do, but the laws are there for good reason. Simply because someone decides on their own that it is inconvenient for the Office of the Privacy Commissioner to have the right to come in and look at a file on behalf of a complainant is, in my view, not a sufficient excuse for setting aside the Privacy Act. There can be no other motive for putting that clause into the bill. What other reason could be advanced? None that I can see.
Senator Cools: When the minister appears before our committee this afternoon, perhaps we could put that question to him.
Senator Cogger: The other document that you were quoting emanates from the office of Mr. Grace.
Mr. Phillips: That is right.
Senator Cogger: He, like you, reports to Parliament.
Mr. Phillips: Yes, indeed.
Senator Cogger: Those are questions and answers for the record.
Were you consulted before a member of this committee called you about Bill C-66?
Mr. Phillips: No, we were not. I am glad you raised that, senator. I was not going to burden the committee with any more of my gripes about life generally. You have many problems of your own.
One of the primary problems of an office such as mine, which has a duty to inform members of Parliament when something is going on about which you ought to know, for good and for ill, is really knowing what is going on.
I have a very small staff. In total, right now, we have 36 people, nearly 20 of whom are complaint investigators. We are a complaint-driven organization. The size of my staff has not changed in many years; however, the workload certainly has. I have been in the office for six years, and the number of complaints that I receive and which must be investigated has doubled. I have no option under the act; I must investigate a complaint. There were 2,000 this year and 1,000 when I started this job. The burnout of my staff is a problem.
I would like a much better level of access and liaison with all the departments of government which are in the process of bringing forward proposals for Parliament's consideration. There is no such requirement upon them at the moment. I think they have been advised by the Treasury Board from time to time and by deputy ministers to consult with my office, and sometimes they do. I have had very good relations with some organizations.
The Chief Electoral Officer, when he was contemplating a permanent register, worked with my office right from day one advising us how he planned to do this and asking what we had to say about it. As a consequence -- and I think Mr. Kingsley himself would say it was a good arrangement between two officers of Parliament -- he has a system which is quite respectful of the privacy interests of Canadians.
Departmental officials do not seem to feel the same degree of urgency to consult with us. As a consequence, we frequently find out about these things late in the day when it is very difficult to effect any useful change. As a practical matter -- and let us not beat about the bush here. When governments have put their reputations on the line in the form of something on the record, it is much more difficult to effect changes. It is also more difficult, sometimes, in an administrative way.
I would be very happy if a committee of this nature were to recommend that, in the future, departments of government should be required to consult with the privacy commissioner if they propose to put any language into a proposed amendment or a bill of any kind that has a privacy impact. Alternatively, we should have a privacy impact statement attached to every proposal that comes before Parliament, certified by the Department of Justice, so that that issue has been clearly looked at and examined.
Senator Beaudoin: Hear! Hear!
Mr. Phillips: That would save us a lot of trouble. Alternatively, give me more money to put more people into research work.
The Chair: As always, we ask if this bill goes against the Charter of Rights or the Constitution.
Senator Cools: We should thank Commissioner Phillips for that clarification.
Senator Maheu: I say this without any prejudice, but in the judge's decision on your court case, he said that the commissioner, without relying on any authority, simply chose to disregard the long-established judicial practice which guards decision-makers from intrusion into the thought process leading to their decisions. He said that, in professing to know how to better run the legal system, he believed that the commissioner lost sight of the purpose and the limits inherent in his own legislation.
This is a Federal Court case before Mr. Justice Noël.
Even though you are appealing this judge's decision, his words are pretty strong.
Can you think of any impediment to the well-established practice that exists now being confirmed in Part I of the Canada Labour Code? Is it possible that you might be wrong in thinking that such notes should be accessible?
Mr. Phillips: I can frequently be wrong. Certainly, Mr. Justice Noël thought so.
Senator Maheu: This is your board.
Mr. Phillips: The Privacy Act makes no mention of board members' notes. If it is personal information, no exemption is granted to board members' notes. That was certainly the foundation of our argument.
If you want to go beyond that, I would have to say: Sometimes yes, and sometimes no. I am an ombudsman, not a judge. I look at the information before me and I try to make a reasonable judgment, which I recommend to the department against whom the complaint has been lodged.
Perhaps it is because I am not a judge and not a lawyer and prone to error that I have no power of enforcement. Our experience has been that, most of the time, departments accept what I have to say.
Senator Maheu: This is not a department; it is a board.
Mr. Phillips: That is true, but it began with the CLRB telling me: Thank you but, no, thank you.
I have cited for you what I believe to be the legal basis of our argument, namely, that this information is accessible under the Privacy Act. Judge Noël took a different view. There are other elements in the judgment which are of concern to us. If you want me to invite Ms Harris to go into that, I am happy to do so.
Ms Holly A. Harris, General Counsel, Office of the Privacy Commissioner of Canada: One issue that is important to keep in mind is that the CLRB is scheduled to the Privacy Act. It is subject to the Privacy Act, whereas courts are not.
Senator Cools: It is subject to Parliament, too, in case you have forgotten.
Senator Beaudoin: The right to privacy is protected in our country by legislation, as are all the great instruments to which you were referring a few moments ago.
What about the question that was raised this morning concerning the secret vote? As privacy commissioner, do you feel that that pertains to the right of privacy? I am inclined to think so.
Mr. Phillips: I think I could find a privacy definition for that. How a person votes is that person's personal information, yes. As a consequence, its disclosure, except without consent, should not be allowed. If someone wants to say publicly how he or she has voted, that is their business; otherwise, it is personal, private information.
Senator Beaudoin: Jurisprudence is created every day on the Charter. The right of privacy, in my opinion, emanates from the Charter of Rights, section 7.
We need more and more rulings in this regard. It is one thing to say that the right to privacy is protected by Parliament and the statutes but, when it is protected by an instrument like the Charter, it is quite a protection.
Mr. Phillips: If this committee wants to add to its many recommendations a suggestion that, at the next go-round, privacy be given specific mention in the Charter, I would throw a party that day and invite you all.
I cannot refrain from recalling that I made that very suggestion in another place -- and, you were present that day -- namely, that it should be included in the Charter.
In a way, that is unfinished business. The history is rather interesting. The original drafts of the Charter of Rights and Freedoms which were laid before the premiers of the country, the First Ministers, at their initial constitutional conferences, did include a specific mention of privacy as a charter right.
The justice minister at the time was the Prime Minister today, Mr. Chrétien. Somewhere along the way, it got lost in the horse trading that goes on in those meetings. It is too bad, in a way, that it did not survive the initial meetings. I hope that some day we can return to it and get it back in there.
Senator Cools: I did a lot of work many years ago on one of these administrative tribunals. In many of them, there is a host of problems waiting to be examined. In terms of your concerns about privacy, do you know of any other tribunal or board which is created by act of Parliament, such as the National Parole Board, which is given an equivalent power basically to hand over people's private information? I do not think the parole board can do something like that.
Mr. Phillips: I do not think so, but I certainly do not know all the details of every statute on the law books of Canada.
There are certainly cases which have come before me in which notes on tribunals and boards have been accessed by individuals. It has depended, up until this court case, upon the information concerned. Generally, boards and tribunals have had a pretty effective and useful working relationship. This is something new.
If this is approved by Parliament, you can bet your boots that every board, tribunal, agency, or whatever, will be coming before you to ask for the same thing.
Senator Cogger: There will be a stampede.
Senator Bosa: Commissioner, you stated that, since you took office, the workload has doubled from 1,000 to 2,000 cases. In what year did you take office?
Mr. Phillips: I became the privacy commissioner in 1991.
Senator Bosa: How many people do you have on your staff?
Mr. Phillips: I think the complement now is 36 or 37. I may be out by one or two.
Senator Bosa: Do you have a backlog? Can you describe a typical case that would come before you?
Mr. Phillips: A typical case would be someone writing to the department asking for all the information concerning a particular matter and the department saying, "No, you cannot have access to this, because under section 1 of so and so, we can exempt this information." The complaint is then referred to my office. An investigator is assigned. The investigator will go and examine all the files. He will write a report for my attention. I will review the report and the information in dispute and then make a finding. The finding then goes to the department. If I find on behalf of the complainant, I will ask the department to grant access. If the department still refuses, I have the right to go to court on behalf of the complainant or the complainant can go to court on his or her own behalf.
That is the process. Sometimes it can take a long time. It sounds simple but, frequently, we are talking about thousands of documents. Sometimes we are talking about hundreds of complaints from the same complainant. I recently had a case in which there were approximately 300 complaints from one complainant.
Senator Bosa: I want to read one sentence from the letter sent to you by the minister, which states:
The protection of the personal notes of adjudicators responsible for the administration of Part I of the Canada Labour Code was confirmed by the Trial Division of the Federal Court in its decision of August 12, 1996.
That has already been brought to your attention.
Mr. Phillips: That is the case to which we referred, yes. That is the case that is now under appeal. The Department of Justice is intervening.
Senator Cogger: Mr. Phillips, even if you were to lose the appeal on your current case, your concerns about section 50 would remain intact, would they not?
Mr. Phillips: Yes.
Senator Cogger: So they have nothing to do with that case.
Mr. Phillips: No, that is a separate issue.
In answer to Senator Bosa, I said that the Department of Justice was intervening in that appeal on our behalf. You may find that of interest.
Senator Cogger: On your behalf?
Mr. Phillips: They are taking our position, yes.
Senator Cogger: The Department of Justice has joined your case?
Senator Maheu: I understand that the Attorney General will be opposing your case.
Ms Harris: The Attorney General is intervening, but his position is not clear. We have not seen their intervention documents. However, I expect that the Attorney General will be with us on some issues and against us on other issues.
The Chair: Thank you, Mr. Phillips, for appearing before the committee today. We appreciate your concerns and comments and we will take them under consideration as we do a clause-by-clause consideration of this bill.
Mr. Phillips: Thank you, Madam Chair and members of the committee.
The Chair: The committee will now hear from Olivier Laurendeau.
[Translation]
Mr. Olivier Laurendeau, Lawyer: Madam Chair, with your permission, I will address the committee in French. I have been practising law in Montreal since 1970, primarily as a litigator. As such, I work cases in superior as well as in administrative courts. While labour law accounts for an important part of my practice, I have not in recent years tried any cases before the Canada Labour Relations Board and I do not have any cases pending before this tribunal at the present time.
However, I am rather well-versed in the Canada Labour Code and I know how important the Canada Labour Relations Board is in Canadian labour law. You will understand, therefore, that I am here only as a litigator who is concerned about the many important issues that affect the judicial process.
The bill now before you has some rather serious implications for the judicial system, or at the very least, for the administrative system.
I do not pretend to have any special knowledge of constitutional issues and I do not intend to challenge the professors and notable legal experts who are here today. I believe my viewpoint is important because it represents that of litigators and these are the people that are generally consulted when legal advice is sought in connection with a particular matter.
The bill amends section 9 of the Canada Labour Code and replaces the current Canada Labour Relations Board by another body, the Canada Industrial Relations Board. At this time, I wish to focus only on clauses 87 through 90 of Bill C-66. Clause 87 reads as follows:
87. The members of the former Board cease to hold office on the commencement day.
This means that on the day the bill comes into effect, all current Board members cease to hold office immediately and ipso facto.
As you undoubtedly know, the chairperson and vice-chairpersons of the current board hold office for 10 years, whereas the other members hold office for five years. Under the proposed legislation, these persons would hold office during good behaviour and would be appointed for a fixed term, which ensures their independence.
Based on the information that I have obtained, the chairperson and five vice-chairpersons would hold office for terms ranging from two to seven years. The six other board members appointed for terms of five years still have anywhere from one year to a little over three years to serve on their current mandate, depending on the date on which they were appointed.
Therefore, as I was saying, pursuant to clause 87, all of these individuals who are exercising important judicial duties in Canada cease to hold office on the day Bill C-66 comes into force.
Pursuant to subclause 88(1), any proceeding that the former Board was seized of on the day immediately preceding the commencement day shall be transferred to the new Board. Subclause 2 gives the new chairperson appointed by the executive on the recommendation of the minister a certain amount of discretionary power. The new chairperson may, if he so desires, ask any member of the former Board to continue to hear any matter that was before him before the commencement day and in respect of which there was any proceeding in which he participated as a member. This discretionary power is not regulated by the bill.
If the new chairperson decides to exercise this prerogative in the case of one current board member, whether it be one of the vice-chairpersons or some other member, the member in question will be entitled to be paid fees that may be fixed by the Governor in Council.
However, members given the opportunity to continue hearing a matter will have to make arrangements to conclude this matter within one year because beyond that date, the chairperson may withdraw that matter from him, pursuant to clause 90.
Therefore, to sum up -- and I think that I am quite justified to do it at this time -- clauses 87 through 90 totally disregard the tenure associated with the appointments made within the framework of the legislation and in accordance with the constitutional principles applicable in such cases.
I will focus on some of the bill's other provisions only when it is essential to do so to ensure my position is clear to you. I have absolutely no intention of commenting on the other clauses. Nor do I intend to criticize the aims pursued by the government through this bill.
As far as I am concerned, and I believe many other jurists share my sentiments, clause 87 pursuant to which current board members cease to hold office comes like a bolt out of the blue in the midst of this bill.
In my opinion, there is no obvious link between this provision which terminates the mandate of board members and the rest of the bill. Furthermore, I personally think that there is no obvious link between the aims sought by this bill, which contains many significant amendments to various aspects of the Canada Labour Code, the elimination of the Canada Labour Relations Board and its replacement by a similar body to be known as the Canada Industrial Relations Board, as stipulated in clause 9 of the bill.
In my view, clauses 87 through 90 constitute a well- orchestrated attack on the guarantee of judicial independence, since these provisions do not respect the most fundamental obligation flowing from this guarantee, namely the security of tenure of judges. Furthermore, this bill does not advance any important or urgent reasons, within the meaning of Supreme Court decisions, why we should disregard this fundamental guarantee and the obligations that flow from it.
Our Constitution, as interpreted by the Supreme Court of Canada, ensures that the independence and impartiality of our courts is an integral part of the constitutional guarantees enjoyed by all Canadians.
The concepts of independence and impartiality have been defined in a number of the Supreme Court decisions, some of which are well known and often cited. A number of very basic attributes are involved.
It is well known that the independence and impartiality of the courts must rest on appropriate legislation. This means that any body that performs judicial functions in Canada must have certain stable attributes conferred upon it by law, attributes which protect the independence and impartiality of the organization as well as its members who are called upon to deliver justice.
I use the word "tribunal" in its broadest sense, without reference to the distinctions that exist between a "court" and a "tribunal". Similarly, I refer at times to members of this tribunal as judges, because I believe they perform adjudication functions important enough to earn them this designation, at least in this presentation. I also use the word "judge" is the broadest possible sense.
According to Supreme Court of Canada decisions, judicial independence and impartiality are attributes that may be applied in different ways. These decisions recall the need for practicality. Care must be taken not to indulge in angelism or idealism. Fewer formal judicial guarantees will be required of an administrative tribunal responsible for enforcing certain special laws than will be required of courts of common law.
For example, there will be no requirement that members of a professional conduct committee be appointed for life, whereas this will certainly be the case for courts of common law which are quite often the last resort for justiciables.
However, I do feel that certain attributes must be assigned by the legislator to a tribunal because these are absolutely essential to the judicial function in a free and democratic society. These three attributes are: security of tenure, financial security and institutional independence. I believe everyone is familiar with the famous rulings in Valente, Beauregard and Généreux and more recently, in Matsqui Indian Band, the references to which are listed in the short document submitted to you.
In my view, most, if not all, legal experts in Canada agree that the most important characteristic among those mentioned is security of tenure.
And while we are on the subject of broad principles, there is another one that we should call to mind: one cannot do indirectly that which one cannot do directly. I will come back to this later.
The fundamental guarantee of security of tenure ensures employment throughout the term in office, whether it be until retirement age, as is the case with Superior Court Justices or for a set period of ten years and five years, as is the case for members of the Canada Labour Relations Board. The manner in which the principle of security of tenure is applied may vary from one tribunal to another, but as soon as an organization fulfils a judicial function, this characteristic must be present, at least during the period of time that these individuals perform their duties within this organization, so that they can work free of any interference or threat of interference.
Given the fundamental principle of the separation of powers, a judge must, throughout the course of his mandate, be free of any interference from the executive and legislative branches of power. The guarantee of independence also applies to the legislative power. This is worth remembering.
In 1953, British legal expert A.L. Goodhart wrote the following:
[English]
The fourth and final principle which is a basic part of the English constitution is the independence of the judiciary.
Ici, nous sommes avant les chartes.
It would be inconceivable that Parliament should to-day regard itself as free to abolish the principle which has been accepted as a corner-stone of freedom ever since the Act of Settlement in 1701. It has been recognized as axiomatic that if the judiciary were placed under the authority of either the legislative or the executive branches of the government then the administration of the law might no longer have that impartiality which is essential if justice is to prevail.
[Translation]
There is no doubt in my mind that today, the essential components which traditionally characterize judicial independence in Canada also apply to administrative tribunals, whether under provincial or federal jurisdiction. Such rulings as Ruffo, and Matsqui Indian Band and the recent November 1996 Supreme Court of Canada decision concerning liquor licensing boards contain statements of principle which are very clear on this subject.
The Canada Labour Relations Board is a tribunal to which the constitutional guarantees of independence and impartiality apply. The Board's members must perform important duties of a judicial nature, duties which account for a large part of their work.
As you can see from the study that you are currently undertaking, the scope of action of the Board is quite broad. The latter addresses various subjects such as labour standards, labour relations, collective bargaining and occupational health and safety. In Quebec, for example, similar powers arising from provincial labour relation laws are exercised by various high-profile agencies such as the Commission de santé et sécurité au travail, the Labour Court and the Essential Services Council. The Canada Labour Relations Board combines a number of the powers that are exercised by all of these provincial organizations, at least those in Quebec.
However, our main concern should be the nature and importance of the powers conferred upon the Board by the Canada Labour Code. Particularly since 1972 and 1978, this administrative tribunal has enjoyed significant coercive and declaratory powers. Mention should be made in particular of the Board's power to issue cease and desist orders. The consequences for those who fail to comply with these orders may be extremely serious.
The Board has the power to make decisions following open proceedings during which each party is allowed to state his case. These decisions can affect the most fundamental interests and rights of justiciables, from an economic as well as from a legal standpoint.
If we take a brief look at the history of this Board, we will note that up until 1972, its powers were really very limited. It did not play an important judicial role. No doubt this explains why, up until the passage of the 1972 legislation, the members of the Board were appointed during pleasure.
Pursuant to the 1972 legislation, the new Board was granted substantial new powers to issue orders. In the process, it became a truly administrative tribunal. The federal legislator took this change into account by appointing members to the Board for fixed terms during which they could not be removed. Beginning in 1972, the chairperson and vice-chairpersons were appointed for fixed terms of 10 years, while other board members were appointed during good behaviour for terms of five years, subject of course to removal for misconduct or inability to perform their duties.
In 1978, this tribunal was granted new cease and desist powers and its responsibility for occupational health and safety matters increased considerably.
[English]
The Chair: Mr. Laurendeau, I notice that you are only at page 7 and there are 12 pages here. Is there a possibility that we could move forward with some final remarks from you and then have some questions? I would appreciate it.
[Translation]
Mr. Laurendeau: I simply wanted to point out that the 1978 reform was considerably more extensive than the changes that you are considering today, but nonetheless, the integrity of the principle of judicial independence was respected. Since their workload was increasing, more members were added to the Board.
Now, for reasons known only to the government, a decision has been made to eliminate this Board and to bring in a number of special provisions to amend the length of the terms as well as the operating procedures.
Perhaps the most important change as a result of this bill is the representational nature of the new board. Aside from the chairperson and vice-chairpersons, board members appointed on the recommendation of agencies to the minister must equally represent workers and management.
This brings me to the gist of my presentation. This reform process, and I will dispense with commenting on the aims pursued today, introduces a change which affects the security of tenure of board members. Let me give you an example. Suppose a government decides that it is dissatisfied with the leanings of an administrative tribunal. I use this as an example because I do not really believe that this is the case here. However, we have to look at the underlying principles and take these into account. We have to see what can happen when these principles are disregarded.
Suppose then that the government is dissatisfied with the board members because in its view, they are too pro-employer or pro-employee. In my view, it is very easy for the government to take advantage of the majority that it has in the House to terminate the mandate of board members. A large number of cases could be pending before the board and suddenly, further to an amendment like this one, the membership of the board could be completely changed. Suddenly, for no clear reason, we could be dealing with newly appointed members.
When the bill comes into effect, the executive, that is the Governor in Council acting on the recommendation of the minister, will temporarily take control of this tribunal and decide which of its members will be reappointed and which will be dismissed. The new chairperson appointed to a five-year term will reassign outstanding cases to new members, although he may exceptionally exercise his discretion and allow some former members to continue considering certain matters.
In my view, this constitutes a direct attack by the legislative branch which is disregarding the principle of institutional independence by doing away with an existing tribunal and which, with the stroke of a pen, is transferring all of these powers and all cases to a new board specifically created for this purpose.
In actual fact, the new tribunal is more or less taking up where the former one left off. This reform constitutes an assault on the fundamental rights assigned to this tribunal, on the members themselves and on justiciables.
I do not feel that the provisions spelled out in clause 87 are necessary to the reform process. They are quite open to a constitutional challenge and I think they could give rise to constitutional debates which, I am confident, the legislator was not expecting when he brought in this legislation in the first place.
Senator Maheu: Mr. Laurendeau, some of my comments will be in French and some in English.
I wanted to say that it is rare, after a change of government, not to see a change in the raison d'être or composition of one of our boards or commissions of inquiry, be it in Quebec or elsewhere in Canada. Normally the membership does changes, but this does not mean that the government is failing to uphold the principles set out in previous court decisions. I think that you are carrying things a little too far.
This is the first time that the legislation has been amended in 25 years. Of course there will be changes. I know of no government that would not renew the membership of commissions, whether quasi-judicial or not, when the time came to overhaul legislation.
[English]
So that my remarks are very clear, as with all other bills, Bill C-66 was thoroughly vetted by the Department of Justice to verify that it did not contravene the Charter or any fundamental legal principle such as judicial independence.
Senator Cogger: So was the Pearson bill.
Senator Maheu: It is not quite the same thing, Senator Cogger. The transitional provisions met these tests, and no precedent is involved. Could you comment on that?
It is obvious that you were invited by someone in the Senate of Canada to appear before us. Are you, by any chance, representing a member of the board now?
[Translation]
Mr. Laurendeau: No, I do not represent anyone. You stated that I was carrying things a little too far. Perhaps this impression is due in part to the fact that I had to skip over several steps in my presentation and come to my conclusions too quickly. Undoubtedly you did not follow my reasoning. I do have a problem with the fact that for no apparent reason, the government amends the Labour Code on a regular basis, be it every 5, 10, 15 or 25 years. Every government does this, if those that are reelected. However, doing away with the security of tenure enjoyed by persons exercising duties which, in my view, are judicial or quasi-judicial in nature, is to bring up constitutional and charter issues, as well as issues involving fundamental freedoms.
In the past, we have seen cases where boards were abolished by different governments. I know of no recent cases where boards with such broad and coercive powers as this one have been abolished. I truly believe that there is a way to reconcile the objectives pursued by the legislator through this reform and respect for judicial independence. Parliament is saying today that it has new plans and one of these plans is to abolish this particular board. What I have trouble understanding is that this new board has been assigned virtually the same powers and characteristics as the former one.
If the legislator feels it is important to change the makeup of the tribunal, I think that given the society in which we live and given the principle oft-stated by the Supreme Court, there would have to be valid, serious and urgent reasons for disregarding a fundamental right. I examined the bill and found no serious or urgent reasons to justify this course of action. It is certainly possible to implement every aspect of this bill while upholding at the same time a principle as important as this one.
We must not forget that Canada has recognized internationally the principle of judicial independence and has adopted a charter containing all of the provisions to which the witness before me alluded. In my view, we cannot proceed in this fashion and not expect the judicial system to be demoralized.
Senator Maheu: Your argument centres on the fact that it is impossible to have a totally new board. The bill contains a provision whereby the same board members can continue to deal with cases on which they have already spent a considerable amount of time. Personally, I think that this approach is warranted, if both the employer and the employee are represented on the board.
Mr. Laurendeau: As a general rule, it is advisable not to take judges off cases that they have been handling. The proposed legislation contains a provision which grants the new chairperson some discretion to reassign the same case to the former board member, provided certain unstated conditions are met.
Senator Maheu: In cases where the judge deems it necessary.
Mr. Laurendeau: Let me simply remind you that the former board member has one year to dispose of the matter assigned to him. It is impossible for a board member to know in advance how long it will take him to dispose of a matter. The legislation clearly states that if, after one year, the board member has not disposed of the matter, the chairperson may once again withdraw him from the case and assign it to someone else.
Not only are the rights of board members at issue here, but also the rights of persons subject to the court's jurisdiction.
Senator Cogger: I am not a constitutional expert, but surely you know that the government regularly alters the composition of bodies like this, or eliminates them altogether. What I am having trouble understanding -- and perhaps you could help me here -- is the point at which the quasi-judicial function threatens the independence of the judiciary vis-à-vis the executive or the legislative branches of government, and to what extent this is perhaps more of an administrative matter.
Let me give you an example. Several years ago, the same government eliminated the Canadian Transport Commission and replaced it with another body with virtually identical responsibilities. The members of this commission nevertheless held hearings, handed down rulings and wielded important powers. They acted like judges or at the very least, exercised quasi-judicial functions when dealing with specific matters brought to their attention.
However, this issue never came up. How is it any different from this case? In your opinion, what is strictly administrative and what is judicial in terms of the board's functions?
Mr. Laurendeau: The Supreme Court ruled in November 1996 on this very point. In Régie des alcools du Québec, the Supreme Court ruled that while this body exercised many truly administrative functions, managed a sector of the economy and issued licenses in accordance with government policies, in some instances it also made decisions which were truly quasi-judicial in nature.
I think that we should compare the Labour Code to the Civil Code. The former does in fact regulate and govern economic ties between various individuals and provide various legal mechanisms for the settlement of major disputes, either before arbitrators or before the Board. The jurisdiction of the Canada Labour Relations Board can, in my opinion, be compared to that of the Labour Court, although the latter does not exercise the same mediation or administrative functions as the former. However, the difference between the two is clearly explained in the ruling to which I referred.
In some respects, the orders that may be issued by the Canada Labour Relations Board are comparable to injunction orders issued by tribunals such as the Superior Court.
Failure on the part of the parties involved to comply with these types of orders constitutes contempt, particularly in the case of Federal Court rulings.
If we look at section 99 of the Labour Code and the powers it provides for, we note that these are associated with the judiciary and that they resemble the powers exercised either by the Federal Court, by the Superior Court, or by the Supreme Court, as it is known here in Ontario.
[English]
The Chair: Thank you very much for appearing before the committee. I promise we will read the remainder of your brief.
We will now hear from the Canada Pulp and Paper Association.
Mr. David W. Church, Director, Transportation, Recycling and Purchasing, Canadian Pulp and Paper Association: Thank you for inviting us to appear here today. As you may be aware, CPPA was denied the opportunity to discuss this bill before the House of Commons Standing Committee on Human Resources when it was before that committee earlier in the fall.
CPPA is a national association representing most of the pulp and paper and solid wood producers in Canada. CPPA has grave concerns with proposed section 87.7(1) which deals with grain transportation and which, if enacted, will have a negative impact on all non-grain industries, including the pulp and paper industry, which utilize Canadian ports to ship their products to offshore markets.
According to background information released by Labour Canada, grain handlers and their employers will retain the right to strike and to lock out. However, proposed section 87.7(1) will also ensure that, in the event of a work stoppage involving other parties in port-related activities, including longshoring, services for grain shipments will be maintained. This provision grants preferential treatment to one industry at the expense of all other exporting industries in Canada.
Canada is the world's largest exporter of pulp and paper, shipping to more than 70 countries around the word. In 1996 exports represented 83 per cent of Canadian production. Forty-five per cent of exports, or about 10.6 million tonnes, were shipped to either offshore markets or shipped by water to the United States. If a labour disruption occurs at a port under federal jurisdiction, shipments of grain will continue unimpeded while the transportation of pulp and paper products and products of all other industries in Canada, will be severely disrupted, if not halted. We believe this is arbitrary, inequitable and counter-productive to our national goal of promoting export trade for all types of products.
We have a major interest in this issue because of the significant impact that the pulp and paper industry has on the Canadian economy. Our industry, the pulp and paper industry, ranks first in contribution to Canada's balance of payments. In 1996, the industry's net contribution to the balance of payments totalled $17.8 billion. Net export of other products brought the total contribution to $31.2 billion. It is, accordingly, vital to our industry that unrelated labour disruptions at Canadian ports do not interfere with the shipments of our products to offshore markets.
In a recent appearance before the House of Commons Standing Committee on Transport regarding Bill C-44, the proposed Canada Marine Act, which I understand is before the Senate today, CPPA expressed its support for the principles contained in the national marine policy in clause 3 of Bill C-44.
Clause 3 states, in part, that the objectives of the act are to: implement a national marine policy that provides Canada with the marine infrastructure that it needs and that will promote and safeguard Canada's competitiveness and trade; base the marine infrastructure and services on international practices and approaches that are consistent with those of Canada's trading partners; and ensure that marine transportation services are organized to satisfy the needs of users and are available at reasonable costs to the users.
We strongly believe that clause 87.7(1) is in direct conflict with these principles stated in the national marine policy. It would inhibit and reduce the competitiveness of Canada's exporting industries, and would be inconsistent with international practices and approaches of Canada's trading partners. Finally, it would do nothing to ensure that marine transportation services, including longshoring services, would be organized to satisfy the needs of all users.
Grain shipments would be granted special status and would continue to move through the federally regulated ports while other products would be adversely affected by labour disruptions and subject to substantially increased transit times.
In 1996, the value of all forest products exported through the ports in British Columbia totalled approximately $15 billion. We are the second or third largest user of the B.C. ports. All products that move through Canadian ports require substantially similar services by the ports and any provision that would assist one sector -- in this case the grain sector -- at the expense of other exporting sectors would harm Canada's trading competitiveness.
Accordingly, we recommend that clause 87.7(1) be amended to grant the forest products industry the same status as the grain industry.
Ms Madeleine McNicoll, Director, Human Resources, Canadian Pulp and Paper Association: I should like to address clause 94(2.1) which deals with replacement workers, the second major issue of concern to the Canadian Pulp and Paper Association.
As you will see from our brief, which was also submitted to the House of Commons Standing Committee on Human Resources Development, the CPPA strongly objects to any amendment to the code which would impact on an employer's right to use replacement workers during the strike.
We particularly object to clause 94(2.1) which is now being proposed in Bill C-66. It contains, in our view, vague and ambiguous language. It introduces new terminology, such as the phrase "trade unions' representational capacity." This terminology is not found anywhere in the code or in any other Canadian labour statute.
It will raise difficulties because there is no case law to guide its interpretation. It will lead to much disagreement and invite litigation which will de-stabilize collective bargaining in the federal sector which, in turn, will have a negative impact on an exporting industry such ours, which is heavily reliant on federally regulated railways and port operations to move its products to international markets.
According to the minister, the goal of the proposed amendment is to prevent the hiring of replacement workers for an improper purpose, that is, to rid the workplace of the union. Clearly, such an unfair labour practice could be remedied within the existing unfair labour practice provisions, which include a prohibition on bargaining in bad faith as well as the board's remedial powers to impose collective bargaining solutions.
As confirmed by the Supreme Court of Canada in the Royal Oak Mines case in February 1996, this, in our view, would be a more appropriate way to deal with a case where replacement workers were used in bad faith.
Within the concept of bargaining in bad faith, the board has been able to distinguish between hard bargaining, which is permissible and legitimate, and unlawful bargaining tactics which are intended to circumvent the union or to avoid bargaining obligations.
This distinction has been made by taking into account the parties' entire relationship.
Clause 94(2.1) introduces a boilerplate-type concept that is not consistent with other obligations in the code. It does not reflect the Sims task force recommendation which was aimed at balancing the rights to effective representation with the employer's equally important right to maintain operations in the face of a strike.
Clause 94(2.1) includes neither the portion of the Sims recommendation that conveys the employer's interest nor its link to the concept of unfair labour practice. While the clause may not represent a blanket prohibition on its face, we feel that it will encourage trade unions to apply to the board on a blanket basis.
In our view, it is reasonable to expect that the language will be exploited to protect against any perceived imbalance in bargaining power. This is a far different issue from that which was considered by the Sims task force and from what the government declared was its purpose in proceeding with the amendment.
Let me reiterate our concern that federal sector labour disputes have a direct impact on the infrastructure of the Canadian economy upon which our industry depends. We believe the proposed amendment will disrupt the balance of power in the federal collective bargaining system and will increase industrial instability in the federal infrastructure. The existing unfair labour practice provisions of the code are more than adequate to remedy misconduct.
We therefore ask the committee to recommend that this clause be removed from Bill C-66.
Senator Maheu: We heard many representations this week and last week asking us to protect everything that comes out of the Port of Vancouver. The grain business has had a constitutional connotation because of the delivery of its product to 70 countries. In your brief, you say that 45 per cent of your exports, or 10.6 million tonnes, were shipped by water to offshore markets or to the United States.
Do you have a breakdown of that?
Mr. Church: We do not have an exact breakdown. I would say that 90 per cent to 95 per cent of the 10.6 million tonnes is to offshore markets; to those 70 countries around the world.
Senator Maheu: Could you share with me how you would deal with the right of the railways to strike or to have lockouts?
The longshoremen are restricted to one small team that would load and move out the grain ships that were already in port at the time of a lockout. This has been constitutionally guaranteed in the past. The changes are intended to stop the industries from depending on government back-to-work legislation to the point where they do not try to bargain in good faith, in many cases. They just wait for the government to legislate the employees back to work.
Could you comment on both the position taken on grain and the back-to-work legislation, from a constitutional viewpoint.
Mr. Church: I cannot comment on the constitutional aspect other than to say that, while grain enjoys protection in the Constitution, the forest products industry is a major industry in the Canadian economy. It is a significant contributor to Canada's balance of trade. As an exporting industry, we do not believe it is right that preferential treatment be given to one sector over another. We believe that all industries should be treated equally in Canada.
With respect to the second part of your question, rather than looking to the government to resolve these issues, we would prefer to have the marketplace resolve the issues. Our industry is dependent upon the export market. We compete in the world marketplace and, if we cannot sell our products to our customers in 70 countries around the world, there are others who will step in and provide those products.
We need to ensure that the systems are in place to enable us to ship our products around the world. We are secondary and tertiary providers in most of the markets in which we sell. There are foreign companies which are much closer to the ultimate markets than we are. If we cannot provide our products to them on a timely basis when they want them, there are others who are willing to step in and do that for our customers.
Senator Maheu: How many days have been lost in your industry to labour disputes, lockouts and strikes in the past 10 years?
Ms McNicoll: That is not data which the association collects. Since 1990, there have not been many strikes in our industry. Previous to that, there were a few more. There were a few more strikes in the west than in the east, but there were not many strikes overall.
Senator Maheu: Do you know in how many of those strikes employees were legislated back to work?
Ms McNicoll: No employees in our industry were legislated back to work.
The Chair: What percentage of your product is shipped through Vancouver?
Mr. Church: Unfortunately, we do not have those statistics. I would imagine that most of the west coast products that are shipped offshore go through either the Port of Vancouver or the Port of Prince Rupert. It is very much a competitive issue. If the Port of the Vancouver cannot provide the service that our members need to serve their customers, they will look for alternatives. The alternatives are the competing U.S. ports, but we have no figures on how much tonnage goes through the Port of Vancouver.
The Chair: The grain people were able to tell us that percentage, and I thought you might have that figure.
Mr. Church: We could try to develop that figure and get back to you with it.
Senator Cogger: You have told us that, because you are in a very competitive global market, if there are disputes in the ports, you lose markets. The grain industry and the chemical industry have told us the same thing. Everyone competes in a global market. However, your competitors do not live in an ideal world where there are no labour problems.
In order to maintain Canada's reputation as a reliable exporter, are we to make it an offence to strike, to walk out or to stop the movement of goods altogether, especially if they are for export? The stevedores might not like that.
Mr. Brian McGurk, Corporate Manager, Transportation, Avenor Inc.; Canadian Pulp and Paper Association: Senator Cogger, the Canadian pulp and paper industry is faced with strong offshore competition. Indonesia has been touted in the news recently for their irresponsible ways of doing business. The Indonesians do not have the same problems that we have. They have the ability to get to the marketplace with lower costs. We are attempting to enshrine in legislation our unreliability as a Canadian industry. This legislation is a direct intervention into the affairs of management and union. Senator Maheu pointed that out. By restricting and eliminating grain, you change through government interaction the dynamics between union and management at the port.
Senator Cogger: You are telling us that by isolating the grain we are putting everybody else at a disadvantage.
Mr. McGurk: Yes, substantially so.
Senator Cogger: What you are seeking is not necessarily the same treatment that is given to grain but that no one receive special treatment.
Mr. McGurk: That is correct.
Senator Cogger: That is language I can understand. Perhaps that is language that a longshoreman would understand as well.
Mr. Bob Beckwith, Corporate Traffic Manager, E.B. Eddy Forest Products; Chairman, Transportation and Distribution Section, Canadian Pulp and Paper Association: Let me give you a scenario in Vancouver. Suppose the longshoremen go on strike in Vancouver, but the grain handlers will continue to operate because they are told to do so. These longshoremen will continue to be paid two to three days a week, perhaps, because it is the same people who would be handling the grain. They will be able to continue the strike and the grain industry will be subsidizing the strike. Another industry will be forced to settle at a higher wage than otherwise. As a result, the grain people will also pay that higher wage. Industry, being resourceful, will find a resolution. The solution may well not be in the Port of Vancouver but in some other port. That is what this legislation would do.
Senator Cogger: I should like you to comment on the following. You are a transportation man. On the one hand, we were told by Prairie Pools Inc. that over the last decade the flow of grain to export markets has been stopped 16 times, resulting in 230 lost days. On the other hand, we were told by the president of the B.C. Maritime Employers' Association that, over the last decade -- the same period of time -- the export of grain was impeded or stopped, as a result of longshoring disputes, for only 25 days. In other words, if you take those two sets of numbers, you come to the conclusion that there were 230 days where the grain did not move in the last 10 years. If clause 87.7 were in force, you would have solved 25 of those 230 days. That still leaves more than 200 days when, even with the proposed legislation, things would have been stalled as a result of disputes in the railway industry, or wherever else.
Mr. Church: That is right.
Mr. McGurk: That suggests that the wording is, perhaps, somewhat misguided to resolve a small problem. The other issue is that, ultimately, labour disputes with longshoremen will equal those others.
Senator Cogger: What would you do, then? Would you expand clause 87.7 to include every industry that touches on this issue or would you take it out altogether?
Mr. Beckwith: We suggest that you take it out altogether.
The Chair: I would mention that at page 130 of the Sims report, it states why they made the recommendation. However, the government decided to take out the first sentence of the recommendation, something which clarifies this point, which states that there shall be no general prohibition on the use of replacement workers. Some people who have appeared before the committee and who have written to the committee felt that they probably could agree with that clause if that sentence had been left in. It would have clarified the position a bit.
On the other hand, this is new wording which has never been used in relation to labour disputes before, as you mentioned this morning. We need some clarification from the minister this afternoon as to why that wording was used.
Most of the concerns expressed have been about this clause and the one which you have mentioned about the dispute. One of the shippers wondered why, if section 97.7 could not be changed, a clause could not be included with regard to settling disputes in a way equitable to what the grain people were getting. They said that, perhaps, in the end, final offer arbitration should have been included.
Do you have any comments about that in respect to other companies?
Mr. Church: We had not considered final offer arbitration, but it is an option. The Canada Transportation Act has a final offer arbitration provision. That is something we would consider to resolve disputes.
The Chair: It could be discussed, then.
Mr. Brian R. Robinson, Corporate Vice-President, Human Resources, E.B. Eddy Forest Products Ltd.; Canadian Pulp and Paper Association: Madam Chair, in fact, that was an option used by one of our companies in the industry last year in Quebec. Domtar Windsor used that avenue. They were able to settle before the final selection came out; but it was provided for.
Senator Cools: I understand from the witnesses that with regard to the proposed section 94(2.1) to which you have some objections, you believe there is already sufficient protection in the unfair practices provisions, which I believe are covered by section 94 of the actlegislation.
You are not the first witness who has told us that they believe that those provisions are sufficient and adequate to the job.
What information do you have as to why it was thought necessary to amend the Canada Labour Code to include proposed subsectionclause 94(2.1)? If you are saying that the provisions already are there and they are sufficient, then why would anyone want to bring this measure in? Perhaps this is a question better directed to the minister.
Ms McNicoll: I agree. That is the puzzle we have had in looking at this. We participated in the consultation task force.
The minister has said all along that he did not intend to ban replacement workers. What we have in the legislation in Quebec is a total ban on replacement workers. That is very clear in the legislation.
The minister said all along that it would be a limited ban. The reason for it was to ensure that replacement workers, or temporary replacement workers, were not used to undermine or to circumvent the union, which would represent bad faith bargaining and an unlawful tactic. The code has provisions to deal with bad faith bargaining tactics.
We have sought different legal advice from different firms to ensure that we understand the law, and nobody can figure out the need for this provision.
Senator Cools: For example, section 94 of the act states that no employer, or person on behalf of an employer, shall participate or interfere with the formation or administration of a trade union.
I will not read the remainder of the prohibitions but, if the protection and the adequate remedies already exist and if the provisions are adequate to do the job, then why is this new provision considered to be the way to go? Lawyers have words for it such as "double jeopardy." I am learning. I listen to them. In fact, it may even be triple jeopardy.
Ms McNicoll: Maybe we could learn, too. We also inquired about the remedial powers of the board to deal with unfair labour practices.
The Sims report, at page 213, made recommendations concerning remedial powers. It noted that there was still some uncertainty in terms of the remedial powers of the board that issue was before the Supreme Court of Canada in the Royal Oak Mines. That decision of the Supreme Court had not yet been issued when the Sims report was finalized. Consequently, the task force was uncertain as to the remedial powers of the board in terms of its power to impose collective bargaining solutions when unfair labour practices were involved.
Those powers are confirmed, now. The Supreme Court of Canada has said that the board does have remedial powers to impose this kind of settlement. We feel that the code is quite adequate now as it exists, without clause 94.(2.1), to deal with an employer who would use replacement workers to circumvent its collective bargaining obligations. That is it.
Senator Cools: In harmony with what you are saying as well, there is this we see in the expression, "undermining a trade union's representational capacity". I have been trying to find out if there is any explanation as to what that term means or if there is any jurisdictionjurisprudence, or body of opinion, or definition. Do you have any idea what the term means?
Ms McNicoll: No, we have no answer. However, we sought advice on it.
Senator Cools: Do you know from where the language may be borrowed?
Ms McNicoll: We do not know that. We would have to ask the minister.
Senator Cools: The more I look at it, the more curious it gets, "undermining a trade union's representational capacity."
Ms McNicoll: In the recommendation in the Sims report at page 131 that terminology is used, and we have a problem with it. We compared the clause that is contained in Bill C-66 with the recommendation of Sims. We noticed that the Sims recommendation contained the word "demonstrated", so there was a burden of proof.
Senator Cools: I am just catching up with you. You are referring to page 131?
Ms McNicoll: Yes, at the top of the page under "Recommendation". The use of replacement workers in a dispute is "demonstrated" -- that is, the burden of proof is on the complainant.
Senator Cools: Yes.
Ms McNicoll: They then said "for the purpose of undermining the unions' representative capacity" -- not "representational capacity", as contained in the bill -- and then they added the phrase, "rather than the pursuit of legitimate bargaining objectives". The first part involves effective representation. The second part, which states "rather than the pursuit of legitimate bargaining objectives", concerns the employer's interest. It is well balanced. This should be declared an unfair labour practice.
They linked it then to the concept of "unfair labour practice". That means, then, that it must be interpreted -- and, correct me if I am wrong -- in the context of the existing jurisprudence. In other words, it does not stand alone.
Senator Cools: Yes, to the jurisprudence on the unfair practices provisions. That is how I read this from the Sims recommendation.
Ms McNicoll: We have a clause in the bill which has removed the burden of proof. Effective representation is included in the clause but the employers' interest is not there, and it is not linked to the concept of unfair labour practice. That is why we feel that there is something missing.
Senator Cools: I am sure that the witnesses are not conferring with each other or cooperating, but almost the same objection was raised by previous witnesses.
Ms McNicoll: Yes.
Senator Cools: It is clear in Sims' recommendation, from which they borrow someone or two of these words, that Mr. Sims is speaking to the provisions which you have said are sufficient. Obviously, those provisions have been working for quite some time. It is very curious.
Ms McNicoll: Under U.S. law, as mentioned by Sims in his report, there is legislation on replacement workers but it is again linked to "unfair labour practice". As long as that concept is there, then it is not interpreted outside of that which already has jurisprudence. We understand what unfair labour practice is about. We understand what an illegal tactic is. It is not a stand-alone concept. No one really understands what this is about.
Senator Cools: Other people have raised thisit, but yourthis explanation has been especially pertinent for the particular clarification that you have brought in terms of linking the two statements and linking it to the concept of unfair labour practices.
The Chair: Most of the concerns we have had about this particular clause indicated that, if the government had followed Sims' recommendation, people would have agreed with it.
Ms McNicoll: As long as it is linked to the concept of unfair labour practice so that it is brought back to what already exists in the code and what we understand the jurisprudence to be on unfair labour practice, then this proposed section would have to be interpreted in that context whenever there was a complaint. That would be a protection.
Senator Maheu: Thank you for your presentation. That subject has been brought up several times. I wonder if, possibly by mistake, you are assuming that Sims is the ultimate. The minister did a cross-country consultation himself. Because there is a task force, it does not means that every single recommendation they make and every bit of terminology they use must be part of the law, especially when the minister, for the first time in a long time, has gone to the grassroots and has widely consulted. He may have a difference of opinion. Let us find out his opinion this afternoon.
Senator Cogger: If consultants are hired at great expense to the Canadian taxpayer and a report is produced, then why would the minister ignore the recommendations?
Senator Cools: Senator Maheu is correct. He does not have to accept those recommendations.
Senator Cogger: He does not have to accept them all, but the consultants have a right to have him explain why they have been ignored.
Senator Cools: He did not accept them. The witnesses just explained clearly that the minister did not accept Sims' recommendations.
Senator Cogger: We know that. We want to know why.
Senator Maheu: We will ask him this afternoon.
Senator Cogger: You are saying that Sims is not the ultimate. Are you saying that the minister is not the ultimate?
Senator Maheu: His is not the only opinion.
Senator Cogger: We will find out when the minister is here.
Senator Maheu: He has the prerogative, just as the Tories did when they were in power.
The Chair: We are getting partisan.
You certainly have put your points across. We will ask the minister this afternoon to clarify that clause for us. Thank you for appearing before our committee today.
The committee adjourned.