Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 36, Evidence, June 5, 2002
OTTAWA, Wednesday, June 5, 2002
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-43, to amend certain Acts and instruments and to repeal the Fisheries Prices Support Act, met this day at 5:02 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today is our first meeting on the consideration of Bill C-43. We have before us the Honourable Don Boudria, Leader of the Government in the House of Commons. Mr. Boudria has with him officials from his department as well as officials from the Privy Council Office, the Department of Justice and the Treasury Board Secretariat.
Mr. Minister, we are in your hands.
[Translation]
The Hon. Don Boudria, Minister of State and Leader of the Government in the House of Commons: Bill C-43 makes minor technical amendments and corrections to various statutes, which would not likely be substantial enough to justify stand-alone separate bills in Parliament. I will deal with these points in a few minutes.
These modifications will ensure that our statutes are up to date and in order on these technical matters. In addition, many of the amendments in Bill C-43 were in the original Statute Law Amendment and were reviewed by the Senate Committee on Legal and Constitutional Affairs.
[English]
However, as honourable senators, will know there is a special process for miscellaneous statute law amendment bills. A draft MSLA bill is first reviewed by House and Senate committee members. If any member objects to any proposal, it is automatically removed. Thus, it works on a lowest common denominator proposition. The items in question may be only technical corrections in any event, but if anyone raises any objection to them, they will be removed. They will automatically be dropped from the bill before it is introduced in the House of Commons and the Senate. There is a leftover from that, if you will.
I understand that some honourable senators have expressed concern about Bill C-43 and the need to respect the process for miscellaneous statute law amendments. In fact, that is exactly what this bill does. It recognizes that there is a different threshold. A miscellaneous statute law amendment is that which no one questions at all. This one has a higher threshold. It may only be corrective or could hardly be of any policy significance at all, but it is still not at the threshold of an independent bill for each of these issues. Thus, they are together in Bill C-43. It does not try to go around the MSLA process. Rather, it is complementary to that process, which is why it is in the form of a regular bill.
The bill was referred to a House committee and I testified that committee in my previous incarnation when I was Minister of State and Leader of the Government in the House of Commons. As a matter of fact, when I came back to the position, I was surprised to see that the bill was still around because it had been disposed of on the House side some time ago.
It is a regular bill. This is the third time I have had the opportunity of speaking on it. I spoke to it at second reading in the House of Commons and before the parliamentary committee. When the bill was at third reading stage, I had changed positions and gone on to something else. I am now back and the bill is before this committee. It is my honour and privilege to testify before honourable senators this afternoon.
It is true that Bill C-43 contains some MSLA bill proposals that had been the subject of some concerns by senators. Again, the threshold at that time was simply removal if anyone did not like it.
Several of the MSLA concerns had been addressed so that the provisions in question were not noted as problematic in the final Senate report on the MSLA bill. I am speaking now about such things as the Fisheries Prices Support Board, which of course does not do anything. It has not done anything for a quarter of a century. One could argue it should, or some such thing, but it does not matter. The same applies to the Nuclear Safety Control Act and the Telecommunications Act amendments.
Out of respect for the concerns raised by parliamentarians who had expressed an abundance of caution — and properly so — and in order to respect the MSLA process, the provisions then were, as I said, extracted from the bill and put, instead, in Bill C-43.
This gives honourable senators and members of Parliament in the other place the opportunity for legislative scrutiny, which we are currently doing, just as the house committee did; and, of course, there will also be debates in both Houses of Parliament.
Again, the MSLA process is not undermined in any way. It is respected and upheld. As a matter of fact, it is also testimony to the fact that the MSLA has worked as a program because, had we been able to put everything into it, there would be no need for this bill today. It would have been covered under the MSLA process. The bill contains other corrections that came to the government's attention after the MSLA bill was tabled. An example of that is a correction in the public service pension legislation to update the minimum age at which lieutenant-governors are eligible to collect a pension.
I now propose to review some of the clauses of the bill in detail. I will focus on the items that honourable senators noted during the MSLA process, and on the new provisions in the bill. Of course, I will answer any of your questions.
For the remaining clauses of the bill — the provisions that the Senate did not object to in the MSLA process — there are descriptions of each amendment in the briefing material provided to honourable senators today, and the departmental officials will answer your questions.
Clauses 2 to 4 make several amendments to the Atlantic Canada Opportunities Agency Act. Clause 2 would allow ACOA to enter into agreements with provinces without obtaining the Governor-in-Council approval, which is a very high threshold. When ACOA was created, Governor-in-Council approval made sense for broad agreements signed with each province, but those are all done. They then moved to sectoral agreements and then to the current process of agreements for specific projects.
We have a curious situation in that we have a Governor-in-Council approval effectively for individual projects. This statutory change would be consistent with the changes to the Department of Industry Act for other industrial projects. In other words, it is not a threshold used elsewhere.
Clause 3 would allow ACOA to enter into agreements with the Enterprise Cape Breton Corporation, ECBC, to act on ACOA's behalf where the activity falls under the mandate of the ECBC. It is intended to reduce duplication between ACOA and ECBC, certainly on the House side, and that has been raised on occasion. Clause 3 does not entail additional spending because ECBC would be acting on behalf of ACOA.
Clause 4 amends the minimum number of times the ACOA Advisory Board must meet. Currently, the board must meet at least once every three months. Under Bill C-43, the board would meet at such times as the president of the board selects, but it must meet at least once per year. This is similar to practices for other advisory boards and even boards in the private sector. The amendment allows consistency with the Canadian Space Agency, the Canadian Food Inspection Agency, et cetera.
As you are aware, some honourable senators had questioned this during the MSLA process as being something that is perhaps a little beyond the MSLA threshold. That is in the bill so that in can be debated.
I understand that there was an objection that these amendments were a delegation of power, which did not belong in MSLA. That is another reason that it is included in the bill. Given that Bill C-43 is not an MSLA bill but a regular bill to be debated and advanced at each stage, I hope that this committee will now be able to support these amendments.
[Translation]
Clause 21 of the bill would amend the National Film Act to remove the requirement that appointments above a specified level must have Governor-in-Council approval. The National Film Board would continue to be subject to Treasury Board policies. This requirement is being repealed because the NFB is the only separate employer that is required to have its staff appointments approved by the Governor-in-Council.
It is a bit unusual to have the Governor-in-Council say, for example, that he is appointing the executive director from I do not know where to the NFB; this does not occur anywhere else. The NFB is audited by an internal auditor and by the Auditor General of Canada, thus ensuring compliance with the compensation policies established under the act.
The government would retain, nevertheless, an oversight role under subsection 13(1) of the National Film Act, which requires the NFB to obtain Treasury Board approval for human resource plans. These human resource plans will still continue to be submitted to a Cabinet committee, namely, the Treasury Board.
This amendment was included in the MSLA proposals. Naturally, some individuals do not support them. I understand that some honourable senators were concerned that this was a substantial change, and should not be an MSLA bill. This is why we have included it in the bill which is now before us.
I want to emphasize, however, that the NFB will continue to be subject to Treasury Board guidelines that apply to agencies like the NFB, so that the board will remain accountable for appointments and will continue to make these within the scope of Treasury Board rules, namely, those that are applicable everywhere.
[English]
Clause 31 would make a correction to the Yukon First Nations Self-government Act so that the French and English versions are consistent. I understand that this proposal may have been the source of some confusion during the MSLA process. The amendment is quite technical and will take a minute or so to review.
Under subsection 10(2) of the act, in both official languages, a central registry of First Nations law is established. Subsection 10(3) of the act, in both official languages, requires that each law in the central registry must be a certified true copy. In subsection 10(6), which is being amended, it states that judicial notice may be taken of a law that is held in a central registry established under subsection 10(2). In English there is no reference to the law being certified, since all laws in the central registry must be certified under subsection 10(3). The French version states:
[Translation]
[...] certifié conforme à l'original.
There is therefore repetition in one language and not in the other. Therefore it is not consistent.
[English]
The amendment would correct that repetition in one language, and would make it consistent in both the French and the English texts. The Department of Indian Affairs and Northern Development was consulted twice. They approached the affected First Nation about the amendment, and they are in support of the proposed legislative amendments.
[Translation]
There are some new amendments. Clauses 17 and 18 amend the Lieutenant Governors Superannuation Act. These amendments respond to a request to lower the pension age from 65 to 60. It will bring the pension arrangements for lieutenant governors more in line with that of the Federal Public Service. For example, public servants with at least two years of service can receive a pension at age 60.
Another example is that of RCMP officers, who can receive a pension at age 60. The amount of the pension of course depends on the years of service. No other changes are made to the overall pension policies or arrangements for lieutenant governors. As you know, honourable senators, the pension plan for members of Parliament provides for a pension at age 55.
Consequently, this is not something that is without precedent, particularly since we know that the career of a lieutenant governor tends to be rather short lived. Lieutenant governors leave their positions after only a few years of service.
Clause 26 would amend the Public Service Staff Relations Act so that student employees of the Canadian Food Inspection Agency would not be covered under that act and not be represented by bargaining agents. This is how the student program operates at the public service, the Canada Customs and Revenue Agency and even Parks Canada. From the outset, the objective was to have similar measures in all cases. It would appear that this was not done properly. This amendment therefore makes this agency similar to the others.
Clauses 28 and 29 would amend the Special Retirement Arrangements Act to add cross-references to public service pension funds that were created in 1999 by Parliament. This is an oversight that should have been included in 1999 when Parliament modernized public service pensions.
[English]
Honourable senators, the amendments are minor. They are technical, and they do not, in my view, raise significant policy issues. I recognize that honourable senators have indicated that, in their view, these provisions do have policy implications in some cases, and those belong in a regular bill. That is what we have done. This is not an MSLA bill. It is a debatable bill, and it has been debated. I would hope the committee would support passage of these housekeeping amendments to ensure that our laws are up to date and in order.
There is a local Ottawa issue in this. There is reference in the National Capital Act to such things as the ``City of Hull'' and other municipalities in Quebec, and the ``Regional Municipality of Ottawa-Carleton'' as opposed to the ``City of Ottawa.'' These entities have all changed and this bill reflects the new perimeters established. What was once the ``Regional Municipality of Ottawa-Carleton'' is now called the ``City of Ottawa.''
These are technical amendments of that nature to correct a variety of measures.
With that, honourable senators, the officials and I would be pleased to answer questions.
[Translation]
Senator Rivest: Generally speaking, I began my political career as an assistant to Mr. Lesage who, in addition to being a great Quebec Premier, was also passionate about legislative technique. He was a disciple of Louis-Philippe Pigeon, who ended his career at the Supreme Court of Canada. There are always difficulties associated with this type of bill.
You know, when the National Film Act is amended by means of an omnibus bill, it is very difficult to put everything in proper context. It is not possible to submit short, very technical bills. But it always poses a bit of a problem. Is there a link to help those people who want to know whether such and such a legislative provision was amended in the National Film Act or in the Lieutenant Governors Act? How are the people who are looking for amendments going to be aware of the fact that the legislator amended such a law, even if it was amended in a minor way? These are technical amendments. How is someone who wants to find out how we approve the appointment of executives to the National Film Board going to find out about the process? This provision is but one tiny piece in the bill and it has no title. Is there an easy technique for finding this type of information? Mr. Lesage, when he was leader of the opposition, would throw a tantrum in Parliament about this. He changed though when he became Premier. In remembrance of him, I will throw the same tantrum. I will probably have just as much success as he did.
Mr. Boudria: Honourable senators, I have thrown a few tantrums myself about the drafting of legislation. This is, nevertheless, an interesting debate. I hate putting preambles in bills when we are amending existing legislation. It is all right to do this when it is a new act. But when we are amending an act, the preamble disappears when we consolidate and you have to go back to the original text. If you are a lawyer with access to all kinds of documents, you may think about going back to the original text. However, the average person must be entitled to read the act as well, with a knowledge that he is in fact reading the act in its entirety. This is an interesting debate. When legislation is amended, consolidation is now done electronically and is displayed on the Department of Justice site. So we now have access to consolidations. Quicklaw software is one way of gaining access to consolidations quickly. These tools were not available in the days of Mr. Lesage.
Senator Rivest: Does this happen relatively quickly on the site? Sometimes the Internet sites are not kept up to date.
Mr. Boudria: Mr. Labelle will explain how much time it takes in order to have access to the complete texts of the legislation, including amendments.
Senator Rivest: Once the bill is adopted — let us use the National Film Act as an example — if I want to consult a site, when will I be informed about the amendment of June 2002?
[English]
The Chairman: Senator Rivest, just before Mr. Labelle answers, I would point out that some of the members of the committee have already dealt with some of these issues because we went through the MSLA process on the first part of the bill. There are new clauses in it and those we have not seen. However, we have looked at others before and we have dealt with them.
[Translation]
Mr. Luc Labelle, Legislative Counsel, Legislative Section, Department of Justice: It is relatively easy to consult the federal statute documents. There is one document called the Table of Public Statutes and it is a list of all statutes, in alphabetical order. Under each of the statutes, all of the amendments are indicated, including the title of the act, and the chapter. For example, the Act of 2000, chapter 27, was amended by such and such a clause. So it is very easy to find your way around using this alphabetical list of statutes. This is called the Table of Public Statutes and it is updated twice a year.
Senator Rivest: We do not have to wait for the revised statutes.
Mr. Labelle: That is correct, everything is in this document.
[English]
The Chairman: I just had it pointed out to me also, Senator Rivest, that Quicklaw is never more than one week out of date. It is up-dated rapidly.
Senator Fraser: My question is to help me understand what we are doing here.
With respect to lieutenant-governors pensions, we are talking about the kind of pension that would have the same in dollar value if collected at age 60, as it would have if collected at age 65. Those people have earned what I believe is called a ``defined benefit pension.'' The definition will remain the same.
We are not talking about the situation that would be familiar to most people, that is, starting to collect your pension earlier and thereby getting a smaller pension. Am I correct on that?
Ms Joan Arnold, Director, Pension Legislation Development, Treasury Board Secretariat of Canada: You are correct in your statement. It is a defined benefit pension, and there is no difference in the amount of the benefit. It is not being reduced because the pension is received sooner. The same benefit that is payable at age 65 is payable at age 60.
Senator Fraser: For some lieutenant-governors, this does amount to an increased benefit. I am not saying that there is anything wrong with that. I want to understand.
Ms Arnold: Yes, in total, that is correct.
Senator Buchanan: In my 13 years as the Premier of Nova Scotia, I dealt with ACOA and its predecessors. I was in St. John's, Newfoundland when ACOA came into being and I was always of the view that it should be streamlined. It will now finally be streamlined. Over the years there has been duplication, and when ECBC was formed there was always the question of who was in control, ACOA in Halifax or ECBC in Sydney? This issue will now be resolved. ECBC will make many of the decisions. They will not be required to be made in Ottawa and finalized by Governor in Council.
I have no problem at all with any of these amendments, since they will streamline the whole process. Governor-in- Council approval certainly would have been required before with the province-wide agreements we had in the sector. Over the last years, it has really taken up cabinet time to do it that way. Those decisions can now be made right in the Atlantic provinces.
I am pleased that the Enterprise Cape Breton Corporation will be acting on ACOA's behalf, especially when the activity is in industrial Cape Breton.
As you know, minister, at the present time and for the next number of years, ECBC will have the very important task of administering federal funds. With Sysco and Devco both now gone, steel and coal might be thought of as a thing of the past. However, hopefully coal will be back soon. I hope we will have another coal mine at the Donkin seam. The coal is there. I want you to tell your cabinet ministers that the coal is there.
The Nova Scotia Power Corporation has made an application to increase rates. The reason they are putting forward is that we are now using American coal, which is more expensive than Cape Breton coal. As well, the exchange rate increases the cost even more. By mining the Donkin seam of the Sydney coalfields, we could mine 1.5 million tonnes of coal, and that could be done through a private enterprise.
I am sure that the Government of Nova Scotia will see it that way and we will be back in the coal business with one mine employing upwards of 300 people. That is a drop in the bucket compared with what the coal industry was, with 6,000 employees just a few number of years ago.
It is important that the funds allocated by the federal government are administered locally. The province and the federal government, through their agencies, not here in Ottawa, will make the decisions. This will streamline that process. That will avoid the duplication that we have had over the years between ACOA and the ECB. Therefore, sir, I support this initiative 100 per cent.
Senator Day: Madam chair, I am also interested in ACOA, however, I would have said what Senator Buchanan said in a shorter fashion, but not nearly as eloquently.
Mr. Boudria: The Honourable Senator Buchanan referred to the time of cabinet being taken up, and that is certainly one element to be considered.
However, there is another point. When project approval is underway, what is sometimes more important is project delay. If you find a private sector partner and you obtain the agreement from the local official, then you send that to Ottawa and it must be put on the list for the special committee of council. That must be in a week ahead of time. You know the drill. It must be reviewed by so and so, and so forth. There is needless delay. Perhaps that is more significant when communities are doing their best to get every single project that they see as being worthwhile for their local economy. They do not want to lose any ground. There probably were occasions where people became fed up with waiting or a private sector partner gave up. Why have that if it is not necessary for project approvals, which is essentially what this bill does?
Senator Buchanan: Contrary to what Stephen Harper says, these are not handouts at all.
[Translation]
Senator Joyal: I would like to ask some questions on the various acts that are amended by Bill C-43. Following up on what Senator Buchanan said, my first question deals with the Atlantic Canada Opportunities Agency. Do the acts for the other agencies that do similar regional development work in Canada, like Western Economic Diversification Canada, contain one or several sections similar to the ones in the ACOA Act? When the appropriate federal minister had an agreement with the province — we are thus talking about federal-provincial relations — as far as you know, was obtaining the agreement of the Governor-in-Council necessary or mandatory?
Mr. Boudria: No. There was not a similar requirement and there still is not. Bear in mind that in the case of the Atlantic Canada Opportunities Agency, in the beginning, this was designed as framework legislation, and as Senator Buchanan said, there were undoubtedly good reasons for some oversight at that level when providing guidance and preparing sectoral agreements. But as there were no other exceptions, it even applied to approving projects, like whether or not funding should be provided to open a plant to process fish and employ 12 people. That does not seem to be the type of issue we want to present to Cabinet. That is currently the case.
Senator Joyal: We agree that if we are talking about a framework agreement with a province, since we are talking about government-to-government relations, it is necessary to ensure that the proposed agreement meets the criteria that are generally followed. We agree with that aspect. Seeking Governor-in-Council approval for individual projects, unless we are talking about an exceptional project that goes beyond the framework of the agreement, appears a bit extreme and time-consuming with respect to fund management. So that is what we are discussing in the proposed amendment this afternoon.
Mr. Boudria: Absolutely.
Senator Joyal: My second question deals with the lieutenant governors. I am going to surprise you, but we are talking about public funds. We are not talking about name changes or adapting a statute to a new reality as is the case with the National Capital Act where the names are being changed to reflect a new reality. Public funds are involved here, even if the amounts do not seem very significant. Can you tell me how much of a pension a lieutenant governor who is 65 years old will receive if he has served five years?
[English]
Ms Arnold: In the act, the pension is three-tenths of the best average salary of five years. Their salaries at present are approximately $100,000, and three-tenths would therefore be about $30,000.
Senator Joyal: Therefore, $30,000 for a lieutenant-governor who may have served five years, on average?
Ms Arnold: Yes, that is correct because the term of a lieutenant-governor is five years.
Senator Joyal: What about an MP after five years?
Ms Arnold: An MP cannot have a pension after five years. They must serve six.
Senator Joyal: I know the answer but I want to have it on the record. We have to compare what is comparable. An MP who is 55 can draw a pension only if he or she has served the requisite number years to qualify. It is important to put that on the record so that people understand how we are using public funds. Do you know of cases, say in the last 50 years, where the mandate of a lieutenant-governor has been extended for more than five years or six years?
Ms Arnold: I am fairly certain there have been instances of that, but I am not an expert on the terms of lieutenant- governors.
Senator Joyal: I know there have been some examples in the past.
Ms Arnold: However, they cannot contribute after five years. Under the act they may only contribute for five years.
Senator Joyal: They have a limited period of contribution. What is the maximum? What is their contribution as it relates to their salary?
Ms Arnold: I believe it is 7 per cent of their salary.
Senator Joyal: How does that compare with members of the House of Commons?
Ms Arnold: I think the House of Commons is 7 per cent right now — I did not bring the MPRAA with me. I think we reduced it to 7 per cent in 2001.
Senator Joyal: The average contribution is similar.
Ms Arnold: Yes, although it is a slightly different accrual rate. Obviously, the accrual rate is somewhat higher for a lieutenant-governor.
Senator Joyal: Am I correct in saying that the minister stated that that has been requested by the lieutenant- governors themselves?
Mr. Boudria: Yes.
[Translation]
Senator Joyal: Is there an age limit for a Governor General to receive a pension?
[English]
Ms Arnold: No, there is no limit for the Governor General.
Senator Joyal: As soon as the Governor General retires, he or she is entitled to his or her pension.
Ms Arnold: Yes. As a matter of fact, a Governor General need not serve any particular length of time to be entitled to a pension. If a person were to bec appointed Governor General on a Tuesday and retire on Wednesday, I believe he or she would receive a pension.
Senator Joyal: They would be entitled to the full pension. I might be interested in applying for that position.
The Chairman: You may want to reform the pension requirements for the position.
I find it interesting that public servants with only two years of service can receive a pension at age 60, which brings them into line with other groups within the civil service. RCMP officers can receive a pension at age 60; public servants who have had only two years of service can receive a pension at age 60; I think members of Parliament are hard done by.
Mr. Boudria: Honourable senators, if I may add to that point, the civil servant retiring at age 60 and hired at age 58 would get a pension, but at 2 per cent per year they would only get 4 per cent. It would not be a very big pension.
[Translation]
Senator Joyal: My other question deals with the National Film Act.
[English]
It relates to clause 21 of the bill, which repeals a section of the act stating that appointment over a certain level of salary has to be confirmed by the Governor in Council. I remember very well the day that issue was raised around our committee table. There was a need to establish some kind of a monitoring mechanism. We can understand that the Governor in Council might be a very heavy mechanism to trigger for all the reasons the minister has mentioned. Does it mean that there will be no monitoring at all? Does it mean that the Treasury Board will not have any specific role to ensure that people who are hired on a salary over a certain amount are not submitted to some kind of monitoring mechanism?
Mr. Boudria: No, it does not mean that. The government would retain the oversight role under subsection 13(1) of the National Film Act which requires the National Film Board to obtain Treasury Board approval for their human resource plans. That is already in place and, of course, the Treasury Board rules then apply to them. What is different in this case is that they had not only this threshold but they also had the additional threshold of requiring Governor-in- Council approval to appoint almost everybody.
I do not know the genesis of this provision. Perhaps we are just dealing with a structure which is some years old. Some of these modern-day comptrollership mechanisms might not have been in place at the time. The only way to ensure that the government had an oversight was to say, ``We will not hire so and so unless we approve him or her as well as their salaries.''
Senator Joyal: That is reassuring. The next item is clause 22 dealing with the Nuclear Safety and Control Act. As I understand it, this clause removes the necessity for approval by the Treasury Board of the terms and conditions of employment of the commission staff. My question is similar to the previous one: Who is now making sure that the conditions and terms of the employment are monitored in the proper administration of the public funds in relation to the commission?
Mr. Boudria: Honourable senators, I will ask Mr. Denys Vermette to answer this question.
Mr. Denys Vermette, Vice-President, Corporate Services Branch, Canadian Nuclear Safety Commission: Some of you will recall that I was here testifying in the context of this provision being put forward in the Miscellaneous Statute Law Amendment Act, at which time questions were answered. I made a fairly comprehensive presentation regarding the nature of the changes to section 16 of the Nuclear Safety and Control Act, which is the section being referred to by the Honourable Senator Joyal.
On the issue of terms and conditions, since its creation in 1946, and particularly since documentation has really come into the fold in 1968, the Canadian Nuclear Safety Commission and its predecessor, the Atomic Energy Control Board, have always had the power to fix their terms and conditions. In fact, even today we do that by virtue of an Order in Council that was passed in the year 2000. We are trying to put on sound legal footing those particular powers.
The matter of us having had the powers is not at issue. We are not acquiring powers that we did not have before. In fact, these powers used to be covered under the Atomic Energy Control Act and a 1968 Order in Council. Since the Atomic Energy Control Act was replaced by the Nuclear Safety and Control Act, those powers have been taken over by the present section 16 and another Order in Council. In the last few years, legal opinion has questioned the validity of using a combination of section 16 and an Order in Council in order to set those powers on a sound footing. We are simply trying to put those powers on a sound legal footing — no more.
Senator Bryden: I was going to say something about Donkin coal, but I will not. I do not want to wake a sleeping giant. Therefore, I will pass. I do want to say, however, that I wish I could play for you a tape of the evidence about Donkin coal when we did the Cape Breton development study. Senator Buchanan might not have needed to say anything. However, he has done it so many times that he does it very well.
Senator Andreychuk: Mr. Minister, I would refer to the Public Service Staff Relations Act that will exclude student employees from the Canadian Food Inspection Agency. As I understand it, you are trying to put the student employees out of the act and not have them represented by a bargaining agent. It would then be consistent with Canada Customs.
Food inspection is such a sensitive area, and I recall the debates after September 11 in Canada Customs. Students were doing those duties at our borders, as well as customs inspections, which are pretty sensitive positions. The questions were: Were they as well trained as they should be? Were they being supervised? What were the recourses if they were not doing the job to the same standard as the rest of the employees? What kind of training were they receiving? As I recall, there were limited resources, so the students came in under one program with a specified job but, obviously, there were add-ons that became substantial. If we are removing student employees from food inspection, is there some assurance that there are some other controls and some other systems in place should these students be in positions that raise public safety issues?
Mr. Boudria: No student employer program in the public service does this anywhere. That being said, Part II of the Canada Labour Code still applies, but not the provision as it appears in this particular case. It does not exist anywhere, so there is definitely an anomaly here. I am not sure of all the implications. Presumably that means that a student employee, summer students or perhaps evening students answering the phone or something, might have to pay union dues out of the small stipend they earn.
There are other considerations in this. It is an anomaly because these provisions apply to no one else. Of course the other employment rules apply. This has nothing to go do with hiring practices. This has to do with the bargaining agents. It is nothing to do with how qualifications are evaluated. It has to do with whether the bargaining agents represent the students or not. In a general way, of course, it is Part II of the Canada Labour Code that applies.
Senator Andreychuk: Does that lead to a student employee handling the same duties and perhaps having benefits and responsibilities different from someone under a bargaining agent and within the act?
Mr. Boudria: Students always have a different status in every sector.
Senator Andreychuk: I was curious about this because it was food inspection. They did not make the distinction, and there must have been a reason for that at the start. Are you saying it was not an intended consequence, if I may say it that way?
Mr. Boudria: It was never intended that they would be covered by the bargaining agents.
These anomalies somehow appear in legal texts, and it is a little bewildering. I do clause-by-clause reviews as almost a one-man committee of cabinet. We go through the bills to ensure that nothing appears in them that would result in situations like this. Sometimes we do not catch all of the anomalies. The billis then studied by the committee of the House of Commons, and sometimes they do not catch these things. Then it is reviewed by a committee of the Senate and some times, albeit honourable senators are thorough, you do not notice it. The first thing you know, you have an unintended provision that appears in legislation which technically means that the students working there are represented by the bargaining agents when they are not anywhere else. They always have a different status.
Again, the tasks that are assigned to them would not be covered by this whether or not they were represented by bargaining agents. That is a different proposition altogether. These questions would have to be answered by the line department minister in each case or the representatives of the various agencies and Crown corporations, and they are completely outside this mandate. It is a managerial function as to what tasks are assigned to any individual person, not whether the person is or is not represented by this or that bargaining agent.
The Chairman: That presumably applies to the training required as well.
Senator Andreychuk: Surely bargaining agents get into the field of discussions of job placement, environment, safety and everything that goes with employment. We are excluding the student. That agent had some responsibility for them in the whole sphere of employment, and we are removing that. Where will it lie, then? Is it with the line agent only?
Mr. Boudria: I indicated the provisions of the Canada Labour Code, occupational health and safety and all these matters. It is not clear to me whether the bargaining agents actually ever exercise this role. I do not know whether any of the officials here have that answer. I do not see anyone volunteering to answer the question, so I assume they do not. It is not impossible. In fact, it may not have ever been exercised anyway, because everyone knows that you do not put these kind of administrative burdens on students working part-time. As to whether anyone ever attempted to exercise them or not, I could perhaps try and find that information and write to the committee Chair.
Senator Bryden: Basically, about 1967, the Public Service Staff Relations Act was enacted to grant collective bargaining rights to public servants that they never had before. The blanket words are: ``It applies to all public service employees except...'' and then there is a long list of exceptions. Included in the exceptions are deputy ministers, people employed on a temporary basis for not longer than six months and students. However, in this instance, the Canada Food Inspection Agency was brought under part of the Public Service Staff Relations Act and they did not put those student employees on the list, and I take it that is what is intended here.
Mr. Boudria: Perhaps it would help to note that these same people working for the then Department of Agriculture, immediately before the act coming into force, would not have that particular application.
Remember that the agency is not a new organization; it is a transfer of an existing structure. You potentially have the case of a student not being subject to this treatment in terms of the bargaining structure, then, the day following, the new structure would apply. Again, the structure is new, but it is actually employees that were otherwise working in the civil service that were included. As well, in creating the Canada Food Inspection Agency, in almost all cases it was people who used to work for Agriculture Canada, and perhaps some who used to be at Consumer and Corporate Affairs.
The Chairman: Mr. Minister, the definition of employee states:
...a person not ordinarily required to work more than one third of the normal period for persons doing similar work.
If you take the normal period to be a year, students do not generally work for more than four months in the year. They might not be defined as employees.
[Translation]
Senator Joyal: Mr. Vermette, can you confirm that you have Treasury Board agreement for the amendment that you were requesting today in clause 23 of the bill? How can you confirm that Treasury Board, to use your legal expression, concurs with your request to cancel Treasury Board approval for the amounts paid to the employees of the commission?
Mr. Vermette: We should start by clarifying that this authority does not affect the control Treasury Board has over the Canadian Nuclear Safety Commission with respect to the granting of funds. We obtain our funding through parliamentary appropriations following Treasury Board approval. This is not a licence to print money that we can subsequently use to pay our people. I simply want to clarify that point.
Secondly, in my capacity as Vice-President of Corporate Services at the Canadian Nuclear Safety Commission, I can tell you that the amendments we are seeking were prepared in consultation with and with the support of Treasury Board several months ago. It was Treasury Board that played a leading role in drafting Order in Council 2135 for us which currently grants us the authority that we are seeking with the amendment to section 16(1). Our legal advisers are simply concerned that this combination of sections in the act and orders in council do not provide as solid a legal basis as they would have liked.
In 1995, when subsection 16(1) was drafted, our legal advisers felt that drafting a new Order in Council, to be read in combination with the new section 16, would create a legal basis that was sufficiently strong and solid. It was only later, perhaps in 1999, that legal counsel started to have some serious doubts in that regard, and we are now seeking to incorporate this authority into the act.
Senator Joyal: I have read the Order in Council that you referred to, 2135, and the legal issue remains open, i.e. Treasury Board is delegating authority to you that the act had attributed to it. This is a bit like giving a judge the responsibility for judging himself. I can understand that legally speaking, there may be some uncertainty as to the legality of the authority that was delegated to the commission itself.
From your answer, we can conclude that this was done with the consent of Treasury Board to normalize the situation that Treasury Board had itself recommended be corrected.
Mr. Vermette: Absolutely.
[English]
Senator Joyal: My last question is on the Telecommunication Act, clause 30 of the bill.
We dealt with that in our first round of discussion, and you will remember that we asked if any litigation was pending, so that we would not be doing something that would hurt a case already in the court. I know we received a letter, but I think it should be on the record that we have an answer to this.
The Chairman: Is anyone prepared to answer if there are any cases pending before the courts?
Mr. Matthew Lynch, Parliamentary Relations Officer, Legislation and House Planning/Counsel, Privy Council Office: There are none that I am aware of, but I could contact the Department of Industry.
The Chairman: I would suggest that we have something from you that we can table and include in the record of the committee hearings before we proceed to clause-by-clause tomorrow morning.
Senator Joyal: That would satisfy my query. It is clear from our previous meetings that we should have that on our record because the question was raised, although I cannot remember by whom.
The Chairman: The letter I received dated October 24, 2001 reads as follows:
Subject: Miscellaneous Statute Law Amendment Act
Proposed amendment to subsection 73(4) of the Telecommunications Act
Dear Senator Milne:
Thank you for your letter of October 19, 2001.
Indeed, I can confirm that the CRTC has never been requested to consent to a prosecution under Part IV.1 of the Telecommunications Act, and that accordingly they have never consented to such prosecution, nor are there any pending requests before the CRTC to consent to such a prosecution. Part IV.1 has only been in force since March 31, 2000 (see SI/2000-22 published in the Canada Gazette, Part II Volume 134, Number 8 on April 12,2000).
The source of my information within Industry Canada is Mr. Claude Beaudoin, Manager, Interconnection Planning and Coordination, Spectrum Engineering Branch. In addition, I enclose a letter from the CRTC confirming these facts.
It is signed by John Cunningham, Counsel, Commercial Law Division, Industry Canada Legal Services.
That is now on the record.
Senator Joyal: It is important to have that on the record because it was the main reason for retaining our consent when that proposal was put to us in our previous discussion.
The Chairman: That is right. I wrote them on October 19, 2001, and they replied October 24, 2001 and by then it had already proceeded.
The committee adjourned.