Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 28 - Evidence - December 6, 2012
OTTAWA, Thursday, December 6, 2012
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill C-44, An Act to amend the Canada Labour Code and the Employment Insurance Act and to make consequential amendments to the Income Tax Act and the Income Tax Regulations, met this day at 10:29 a.m. to give consideration to the bill.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[English]
The Chair: Honourable senators, we have quorum and I hereby call the meeting to order.
[Translation]
Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I am Kelvin Ogilvie, a senator from Nova Scotia. I will ask my colleagues to introduce themselves, starting on my right.
Senator Seidman: Judith Seidman from Montreal, Quebec.
Senator Enverga: Tobias Enverga from Ontario.
Senator Eaton: Nicole Eaton from Ontario.
[Translation]
Senator Verner: Josée Verner from Quebec.
[English]
Senator Cordy: Jane Cordy from Nova Scotia.
Senator Eggleton: Art Eggleton from Toronto and deputy chair of the committee.
The Chair: Thank you. We have two sessions today. Is it agreed, honourable senators, that the second session will start no later than 11:30?
Hon. Senators: Agreed.
The Chair: Thank you.
I am pleased to welcome our witnesses. We have three witnesses today. I will welcome them as I call them to speak. By agreement, we will go in the order listed on the agenda, and that would mean that Marie-Adèle Davis, Executive Director of the Canadian Paediatric Society, will go first, please.
Marie-Adèle Davis, Executive Director, Canadian Paediatric Society: Thank you for inviting the Canadian Paediatric Society to present to you today. As the chair said, I am the executive director of the Canadian Paediatric Society, and I am pleased to address you on behalf of our members, over 3,000 pediatric specialists and subspecialists from across Canada. CPS members represent the physicians who are caring for the children, youth and families who will benefit from the changes proposed in Bill C-44.
We applaud the Canadian government for understanding the particular challenges faced by parents of gravely ill children and youth: the need for them to be at their child's bedside in a health care centre, their ability to stay at home and care for a child recently discharged from hospital, and the necessity for parents to be available to make health care decisions on behalf of their child. Further, the proposed legislation recognizes the emotional stress of having a child afflicted by cancer, severely injured in a life-threatening situation, or at the end stage of an incurable genetic disorder.
CPS also appreciates the flexibility built into the legislation, that it recognizes that parents of a gravely ill child may not be taking all the leave at once in a given 52-week period. Given the resiliency of kids, even those facing a life- threatening illness, they may be able, for periods of time, to return to normal life, attending school and other activities. The fact that Bill C-44 allows parents to reapply for benefits should the child have a serious relapse is practical. We also fully support that the benefit can be shared between the parents, ensuring that both can be fully involved in the care of their gravely ill child.
Since I had an opportunity to present to the House of Commons HUMA committee on this bill, I have given further thought on how it might be improved to even better support the families it was created to help. Please allow me to address these points.
This assistance will benefit all parents of gravely ill children. However, perhaps the greatest benefit will be for those parents who face the steepest socio-economic obstacles, for example, single parents, those with minimum-wage jobs and those with part-time employment, often without extended health benefits from their employer. It is vitally important that the eligibility for this Employment Insurance benefit be set up in such a way that it is inclusive of all parents who need the help. Therefore, the Canadian Paediatric Society would ask that Bill C-44 have the eligibility criteria for Employment Insurance for the parents of gravely ill children that are in line with those of other programs that require a minimal number of weeks worked.
Further, the Canadian Paediatric Society would ask this committee to give serious consideration to increasing the number of days for which parents can claim the benefit following the death of a child so that it is in line with the benefit available for those parents who tragically lose a child to crime.
The Canadian Paediatric Society feels that we can work collaboratively with the Canadian government to ensure the smooth implementation of Bill C-44. As our membership represents the majority of physicians who will be completing the forms for families, we would like very much to be involved in the actual development and design of the forms to ensure their ease of use. It is vital that the forms be created from a family, child and youth perspective and not simply a modification of those forms used for adult health needs. By taking time to develop a family-centred form, we believe that the application process for the benefits will be much smoother and diminish the bureaucracy involved. It is important to remember that the physicians caring for these gravely ill children are extremely busy, and we want to ensure they are spending their time with the families and not on paperwork.
CPS would also welcome the opportunity to work with the government to ensure that the definition of the gravely ill child is as workable as possible for families, pediatricians and the federal employees managing the program.
In closing, the Canadian Paediatric Society is very supportive of Bill C-44. We do encourage the government to work closely with us to ensure the smooth implementation of the bill and to realize all of its potential to support parents of gravely ill children and youth.
The Chair: Thank you very much. We will now turn to Denise Page, Senior Health Policy Analyst for the Canadian Cancer Society.
[Translation]
Denise Page, Senior Health Policy Analyst, Canadian Cancer Society: Good morning. On behalf of all cancer patients and their families, we thank you for giving us this opportunity to speak with you about some of the problems faced by parents with seriously ill children and to highlight the improvements that should be made with Bill C-44, Helping Families in Need Act. I am the Senior Health Policy Analyst for the Canadian Cancer Society.
The Canadian Cancer Society is a national, community-based organization of volunteers whose mission is the eradication of cancer and the enhancement of the quality of life of people living with and beyond cancer. Over the past two years, the Canadian Cancer Society has been asking the federal government to create a special EI benefit for parents of children with cancer and to ensure that the benefit reflects the reality faced by these parents. Until recently, parents could only claim six weeks of the EI compassionate care benefit if a physician certified that the child was at risk of dying within the next six months.
We welcomed the government's new EI benefit for parents of seriously ill children, which should allow parents to be absent from work for a period of 37 weeks and receive income support for up to 35 weeks. However, we want to ensure that there is sufficient flexibility when it comes time to make the request. Here is why.
It is estimated that, in 2012, 1,400 Canadian children and youth (from birth to 19 years of age) will be diagnosed with cancer and 160 will die from cancer. Although the survival rate after five years for all childhood cancers combined is 82 per cent, cancer is still the second leading cause of death in Canadian children older than one month, second after accidents.
Progression and treatment of cancers vary according to the different types, and from one child to another. Although each cancer patient is different, typically the total course of a chemotherapy treatment for a child is about six months but can range from three to 12 months.
When radiation is given as a main cancer treatment, the therapy is usually given once a day, five days a week, for about three to eight weeks. Treatment may also last longer or hospitalizations can be more frequent and longer; sometimes both are necessary and treatment is not always continuous.
Moreover, specialized pediatric oncology treatments are only available in certain Canadian cities. Therefore, some parents have to travel long distances, 100 km or more, to obtain the required medical care for their child. Parental caregiving after a cancer diagnosis is stressful and is not optional. Unlike other caregivers for an adult patient, a parent must participate 24/7 in the care of their child.
Cancer in children and youth has an enormous impact on health, economic and social welfare systems and places a tremendous burden on the family. An estimated two-thirds of childhood cancer survivors have at least one chronic or late-occurring side effect from their cancer therapy.
Up to one-third of these late side effects are considered major, serious or life-threatening. As more children and youth survive a cancer diagnosis, the need for long-term monitoring and follow-up care will continue to grow.
Therefore, one important thing for this committee to keep in mind is that for cancer, children sometimes are treated over a long period of time, and the treatments are not always continuous. As soon as a child is better, pediatricians strongly recommend returning to normal life.
We are asking the committee to ensure that there is a certain amount of flexibility in the program so that parents can take time off work when necessary, and then return to normal life at the same time as their child, thereby recognizing the non-continuity of treatment, and the possible need of benefits in the event of a relapse or late side effects.
Another issue that must be addressed when talking about parental caregiving is job protection. Although the current job protection component of this legislation will help many Canadian families, it does not include protection for Canadians whose jobs fall under provincial or territorial jurisdiction. The Canadian Cancer Society urges this committee to ask for a clear commitment from the federal government to discuss — at the next meeting with federal, provincial and territorial ministers — the need for complementary provincial and territorial legislation to ensure that those labour codes offer the same job protection to all Canadians.
In closing, last February, the Minister of Finance said that the new family caregiver tax credit was a first step. We see the implementation of this bill as another important step in the process, and we will continue to work with all governments to improve the quality of life of cancer patients and their families.
[English]
The Chair: I will now turn to Stephen Moreau, who is a partner with Cavalluzzo Shilton McIntyre Cornish LLP.
[Translation]
Stephen Moreau, Partner, Cavalluzzo Shilton McIntyre Cornish LLP: Mr. Chair, thank you for inviting me to talk about Bill C-44.
[English]
I will tell you what the scope of my presentation will be. You are well aware that Bill C-44 implements three main changes to the Employment Insurance Act. I am speaking about the third change. The first two changes are the ones that the other witnesses spoke to, the new leave related to critical illness and the new leave related to the death or disappearance of a child. I will speak about the third one, a small change you see in a couple of sections, which is the introduction of amendments to clarify the way the Employment Insurance Act treats people who claim a sickness benefit during a parental leave.
Overall, I can tell you that I favour all of the changes as a general rule, but I want to focus on that third change, the sickness during parental leave change. I will tell you about my interest.
[Translation]
I am a law partner with Cavalluzzo Shilton McIntyre Cornish, a law firm in Toronto that specializes in labour law and workers' rights.
[English]
In my practice, I have developed a subspecialty in Employment Insurance, which is unusual since Employment Insurance benefits tend to be generally small and lawyers do not like to work for small amounts of money. I have many clients who have, I would submit, suffered some injustice or shortcomings as a result of certain shortcomings in the Employment Insurance program. Some of that is discussed in a brief that I provided the committee. Just as a small aside, if you want to learn more about what I do and what I am saying this morning, I have a witness brief of about 10 pages that I have submitted to the committee.
I will give a few remarks concerning my views regarding Bill C-44 and that third change that I talked about. I come to this bill this way: I acted in 2010 and 2011 for a woman named Natalya Rougas of Toronto. Ms. Rougas was diagnosed with breast cancer in the thirty-third week of her thirty-five week parental leave. She was to return to work after those 35 weeks. She could not. Instead, she had to undergo a year's worth of chemotherapy and related treatments. She said, "Since I will be away from work for this period of time, I should be permitted to claim a sickness benefit under the Employment Insurance Act, and then I can resume my parental benefits later when I am feeling better." She was denied under the Employment Insurance Act before the Bill C-44 amendments that are proposed.
I got involved and appealed that decision, and we won in August 2011 before the Employment Insurance Umpire. The umpire held that, under the existing Employment Insurance Act, a woman could claim a sickness benefit during a parental leave period. The Government of Canada determined, quite rightly in my view, not to appeal that decision, more specifically to seek judicial review at the Federal Court of Appeal. In fact, the minister's spokeswoman is on record in the Toronto Star, and I have quoted that and referred to it in my brief, as saying that Ms. Rougas's situation was unfortunate and that the system was unjust.
Bill C-44 and the amendments I am speaking to this morning are the product of that unjust result in the Rougas case. I support Bill C-44 as not a necessary piece of legislation but as clarification so that no one should have to go through what Natalya Rougas went through. They should just apply for the sickness benefit and it will be there for them. They should not have to appeal to the existing wording of the Employment Insurance Act, hire a lawyer and go through a two-year appeal process like Ms. Rougas did.
Why do I support the change or the broad notion of having a sickness benefit during a parental leave benefit? The brief sets it out, but basically there are historical reasons to support this that I will not get into. There is what I call dignified sickness. Individuals who claim sickness benefits have paid into the system. They have worked and go back to work. At least, that is the purpose of the legislation.
I believe that the House of Commons and the Senate have already supported the notion of a sickness benefit during parental leave through provisions in Bill C-49 passed in 2002. I will refer you to my brief at page 7. You do not have to turn there, but for your record, the Minister of Finance of the day, John McCallum, and a senator I gather is not with us any more, Senator Anne Cools, made very clear statements in the house and the Senate and before a committee of the house to the effect that Bill C-49 in 2002 already provides for this benefit.
I thank the government for Bill C-44, but I must say that Bill C-44 is not strictly speaking necessary. It clarifies but is not a necessary provision. You can go to my brief if you want more detailed information. I am open to questions as to why I support that change.
The Chair: Thank you very much for your presentations. I need to correct one small item. Senator Cools is still very much a senator here in the Canadian Senate, but she is not on our committee. Referring to our committee would have been correct, but in the Senate she is certainly there.
I will turn to colleagues for questions.
Senator Eggleton: Ms. Davis, you made a specific suggestion but did not give us a copy in writing. You felt there was an improvement that needed to be made in the bill or how the bill is implemented or the regulations of the bill. Can you repeat that and give us a copy in writing?
Ms. Davis: I apologize for not having these prepared. I just got back from Vancouver at one o'clock last evening. I will send them to the clerk.
I am asking this committee to ensure in its wisdom that the number of hours that individuals need to work in order to access the benefit is in line with other Employment Insurance benefits. My understanding was that, as the bill is currently written, it is higher, and my concern is that that would put the most vulnerable of families at further risk. If you are working part-time, if you do not have benefits from work, it will take you a longer amount of time to amass the hours that would make you eligible. I just ask this committee to consider thinking about single moms and people working part-time because arguably they may need the benefit from a financial point of view more than any others.
Senator Eggleton: The 600-hour provision is in here. You are saying it should be lower than that.
Ms. Davis: I am not an expert in Employment Insurance, as my colleague to my right is, but my understanding is there are others where there is a 420-hour threshold. I would ask that that 420-hour threshold be looked at to support vulnerable people.
Mr. Moreau: I do not know about that. I thought it was 600 hours all around and I did not think that was changing. I do not know what the 420-hour provision is. I understand there is above 600 for a minor attachment claim. I did not realize it was below. I defer on that one. I do not know the answer to that.
Senator Eggleton: Much of the focus has been on uncritically ill children or on parents of murdered or missing children. When it comes to critically ill children, the 600 hours apparently does apply, but when it comes to parents of murdered or missing children, it does not apply at all, no minimum requirement. Have you any comments on that?
Ms. Davis: I would like to see it be equal across the board.
Senator Eggleton: You also mentioned, Ms. Davis, the issue that the benefit ceases at the end of the week the child dies, whereas in the case of a disappeared child, unpaid leave ceases 14 days after. Was that not one of your references? You said they should be equal and both 14 days?
Ms. Davis: Again, I think that would be fair. Unfortunately, whether you lose your child to illness or to crime, you need time to get back on your feet, if you will, not that you do that in 14 days, by any stretch of the imagination, but perhaps to be ready to go back to work in a meaningful way.
Senator Eggleton: Mr. Moreau, you have zeroed in on one aspect in the bill. The provisions that presently exist for sick leave are 15 days. That has been in effect, I think, for several decades. Do you think that is a correct amount today? I realize it blends in with the other provisions, but is that reasonable in terms of sick leave?
Mr. Moreau: It is 15 weeks that has been in place.
Senator Eggleton: That is what I meant.
Mr. Moreau: It has been 15 weeks since 1971, to be precise. Is that still in line with today? I would say, generally speaking, I would like to see more. Whether it is in line with today or not is a massive question that would involve a lot of industry analysis, because many employers set their benefit levels around the 15 weeks. You have the 15 weeks of EI. There is typically some short-term leave and some long-term leave built in around the existence of those 15 weeks. To some extent it sounds great; let us make it 30 weeks; is that not more in line with today? I would say in response to that that if you do that, employers might decide not to offer short-term disability any more. It is a very complicated question. It is not just simply a matter of adding to the pot.
That being said, the average sickness claim I believe is in the eight- to ten-week range, even under the existing system, so it is not necessarily the case that on average something higher has to come into effect, to be honest. That being said, generally speaking, I always support more rather than less.
Senator Eggleton: We heard from Minister Finley yesterday. She said with modern technology you can get in and out of the system. There are more ambulatory care kinds of facilities; you are in and you are out. In that respect, the 15 weeks might still work, but in other respects, there are more chronic illnesses. In cancer, people take a longer period of time to recover, a longer rehabilitation period. I am wondering how much we need to examine the sick leave provision to be in line with what the needs of Canadians are today.
Mr. Moreau: Generally speaking, the way in which the EI system falls short, and that is not just in respect of sickness but in many of these leaves, is that it purports to be insurance, but we all know insurance normally has provisions that say you get compensated for your loss. The loss can be small or can be large, but you pay the same premium. This system very much has set maximums and one-size-fits-all criteria. Perhaps that is necessary to keep costs down, but if you are into an insurance system that we are used to, such as a house insurance system or most insurance systems, they do not set very specific numbers that get paid; they just say you get compensated. Naturally, there are certain maximums. Usually the maximums are set extremely high.
[Translation]
Ms. Page: As far as cancer is concerned, when the employment insurance was created in the 1970s, 15 weeks were probably enough to confirm the diagnosis and the fact that you were dying. Today, with current treatments and technology, a lot more people survive cancer, but, naturally, treatments also take place over a much longer period of time. Patients tell us that, by the time they undergo treatment, the 15 weeks have long run out and they have been without benefits, job protection and income. The 15 weeks are not enough. We still have to determine how many weeks are needed, but the current number is not enough.
[English]
Senator Eggleton: There is a rehabilitation period of time that is needed beyond.
[Translation]
Ms. Page: After treatment, yes.
[English]
Senator Merchant: I have a very small question for Ms. Page regarding the age eligibility. You mentioned a statistic about cancer patients and you went up to age 19. I think this legislation now cuts it off at age 18. Do you have any problem with that?
[Translation]
Ms. Page: I do not have any say in how statistics are calculated. Under the current legislation, young adults over 19 can make their own decisions. As for those under 19, their parents have to be there to give their consent.
[English]
Ms. Davis: Whether or not a youth can give consent to his or her own medical treatment depends on their capacity to give consent. So you absolutely could have a 14- or 15-year-old consent, but the parental support and the parental involvement in those decisions are very important. While, technically, legally under 18 they can give their own consent, for serious diseases or injuries it really is a family affair.
Senator Merchant: The leave of absence for the parent of a critically ill child would be 37 weeks, but for the support for the parent of missing and murdered children, the parent is entitled to 52 weeks. Do you think those two should be aligned?
Ms. Davis: Yes, certainly, I would think they should be aligned. For us, and this is from speaking to our member pediatricians, what is important to understand, and Ms. Page touched on it, is that because of treatments we are much better able to treat and therefore often cure children who have critical illnesses, but it does not happen overnight and it does not happen in a straight line, so we need recognition of that flexibility that I mentioned. However, if parents can apply and then reapply, I am hoping that it is as easy as possible and they do not have to go through the application. I think that the benefit can keep renewing, and I think the committee should consider how it can be available, because we are just talking about one 52-week period. The likelihood of that same family having the child become ill again in the next 52-week period or perhaps a third 52-week period is absolutely there. We need the flexibility that people can come in and out and that there are not too many barriers to being able to have this benefit each time it is needed.
Senator Merchant: You also mentioned that you were hoping that there would be a smooth implementation. In the past, have there been problems with the applications taking too long?
Ms. Davis: Yes, there have been two issues that our members have mentioned to me in the past. One is that under the compassionate care benefit, it was if the child was at imminent risk of death. That is not something pediatricians will write down on a form very often, unless it will happen within the next 24 hours. They know that kids are resilient, that kids who look very sick today can be on their path tomorrow, and it is important to keep the hope alive for the family. I stress that hope has a very powerful healing effect.
Pediatricians found it virtually impossible to say that they can predict with certainty that that child will pass away within six months.
I lost my train of thought, which is embarrassing.
Senator Eggleton: We do that all the time.
Senator Cordy: Thank you for being here. We are always pleased when we can help Canadians and Canadian families when they are in need, both emotionally and financially.
Mr. Moreau, you talked about your appeal to the Employment Insurance Umpire. Is Bill C-44 actually not just a clarification of Bill C-49 that was brought in in 2002 under the Liberal government? I asked Minister Finley yesterday whether or not Bill C-44 was just a clarification for that bill and she said that indeed it was. I believe that is what the umpire based his decision on, was it not, that it had been misinterpreted by the department?
Mr. Moreau: The short answer is this: Before the year 2002, you could take a sickness benefit and a parental benefit, but before 2002 there was what we call a cap or an anti-stacking set of rules, which says you cannot take them both together. You get cut off, in fact, at 30 weeks. You can imagine you are at 15 weeks of maternity and you start some parental; you will never take a sickness benefit. Therefore, it was cut off.
Bill C-49 got rid of the caps — the anti-stacking — which was the only impediment to taking a sickness claim during parental leave. If you become sick during a parental leave post-Bill C-49, post-March 3, 2002, you can take that leave. It is unfortunate that it took nine years and the Rougas case to get that answer from an umpire.
I suppose Bill C-44 is designed to be a bit of a push to the Employment Insurance Commission not to deny this type of claim again. It is a practical matter and should be welcomed. I like the clarification. It is clarification but nothing more; it is not a necessary bill on that point.
Senator Cordy: What will happen now to EI claimants who no longer have access to an umpire because of the omnibus bill last spring?
Mr. Moreau: Due to the omnibus bill, they will have access to a different set of administrative provisions. The hope is our administrative tribunals. The hope is that, because Bill C-44 represents the minister's acceptance of what the Liberal government did in 2002, there will just be a shift on the ground at the commission level — the first, base-level commission rep who gets the phone call and says, "I would like to make a sickness claim." They look and say, "I have to give you the sickness claim." There will not be any need to go to the board and the Employment Insurance Umpire but to these new social tribunals that have been created.
I am not really answering your question, but the answer is that you will not need to go before an umpire.
Senator Cordy: For this particular issue?
Mr. Moreau: For this particular issue. It should be resolved as an administrative matter going forward.
Again, it is too bad it has come to this, but it is the lesser of two evils for the women who have to make these claims tomorrow.
Senator Cordy: Ms. Davis, you spoke about making paperwork as simple as possible. Would you expand on that a bit? Certainly, if families are in crisis, the last we want to be dealing with is paperwork. Therefore, how do you see this proceeding so that the paperwork for a missing or murdered child is easy, as is the paperwork for a critically ill child? I cannot imagine where my mind would be if I were in that situation.
Ms. Davis: Thank you. That was what I was also going to respond to for Senator Merchant.
There are two aspects to it. One is making the first form as easy as possible. Unfortunately, a number of the forms currently used are complex. For instance, the form for the disability tax benefit is the same for adults as for children.
Let me give you a very clear example of where that becomes problematic. Pediatricians can be filling in forms for a 12-month old. Does the individual's disability interfere with their ability to walk — yes or no? If they tick off "no" — and they cannot comment on whether it is interfering; they can make a good guess — then it comes back as "claim denied."
Then they get into the appeal process. Depending on where the appeal is being done from, it might be the pediatrician who has to go back and do more paperwork, thereby taking them away from their patients. If it is a benefit they were trying to claim under the First Nations and Inuit Health Benefits, then the family has to do the first appeal. My understanding is that such a process involves a number of barriers for those families because it may not be in their language or is not a culturally appropriate form.
We do not want to see forms currently being used for adults simply used for children. That is why we are very openly extending an invitation to the federal government to sit down with us once the bill is passed and let us design forms together that work for the pediatricians, the families and the federal government in providing this benefit.
Senator Cordy: We know that the information has to be sufficient, and we know that in all areas we have to remember that we are accountable to the taxpayers.
Ms. Davis: Yes; absolutely.
Senator Cordy: Having said that, I think we can work together to find a form that will do both.
Ms. Davis: Yes.
Senator Cordy: Yesterday, I asked the minister about the 600 insurable hours required. I think I said six months; in fact it is over a year. I think she said there was no minimum, but when we look closely, there was a six-hour minimum. You also mentioned 420 hours. That was a question I asked yesterday: Why not 420 hours to broaden the net? If we are helping families in need, those working less than 620 hours would probably be most in immediate need.
You touched on that earlier; could you expand on that a bit?
Ms. Davis: I heard from two individuals who had looked at the bill in detail that there was a higher requirement for the number of hours worked. As I said before, you are the chamber of sober second thought. I am encouraging you, in looking at this bill, to ensure that it is there for everyone, but to also remember the particular challenges of single moms working part-time who do not have extended health benefits who need this to look after their gravely ill child.
Mr. Moreau: Regarding that comment, I do not know whether 420 hours are required. I apologize. I will assume it is because of the way the question was asked and answered, but I have not studied that part.
On the assumption that 420 hours is required for some and 600 for others, this bill would then run into a significant and serious problem. Qualifying hours has been a major bugaboo for women in this country for the better part of 10 or 15 years — women who work part-time hours and cannot accumulate hours as much. They have launched three separate section 15 Charter challenges over the counting of hours.
If you change the counting of hours so that it is X for some and Y for others, you take the risk of a violation of subsection 15(1) of the Charter of Rights and Freedoms. The cases are called Lesiuk, Perigny and Manoli — these are all Federal Court of Appeal decisions.
I question whether the Department of Justice has properly studied this bill with that section 15 concern in mind if there is a 420-hour provision for some illness or situations and not for others. That is my only caveat, comment, concern or worry that this chamber would have to address.
The Chair: I think we should try to clarify this. Our understanding is that the 420 hours is not part of this bill; it may be in other issues and other programs, but it is not part of this bill.
Is that correct, Senator Eaton? I think it is important to clarify this.
Senator Eaton: For regular benefits, it is a sliding scale of hours worked, based on the local unemployment rate. The highest unemployment rates require 420 hours. If you live in a region where there is a high unemployment rate, you are only required 420 hours. However, if you live in a region where there is a lower unemployment rate for EI benefits, 600 hours are required.
However, for these special benefits, 600 hours within a year is required across the board.
Senator Cordy: It is related to this bill.
The Chair: I think it is really important that we keep that straight with regard to this bill. Thank you very much.
Senator Cordy: I would like to go back to an issue that was raised. I raised yesterday with the minister that if it was a murdered child, then you would get 14 days of leave after the death of the child. However, if it is a death because of critical illness, then you have to return to work or your benefits end at the end of the week in which the child dies.
I find that difficult to accept because it would not matter as a parent. Your child is gone. The minister said that most companies and federal government employees would have bereavement leave. However, if we are talking about single parents working part-time, there would be no bereavement leave.
Therefore, how do you feel about the difference within this particular bill in terms of the number of days allowed for a parent after the death of a child?
Ms. Davis: From my point of view, if there was the opportunity to create an equal number of days, that would be preferable. I am focusing on those parents who do not have extended benefits from work. Even for those who do, we give three to four days for the death of an immediate family member. Unfortunately, it does not matter how your child dies; your child is, unfortunately, gone.
[Translation]
Ms. Page: The reason why we asked the federal government for a special benefit for seriously ill children was to make sure that death within six months was not one of the criteria. When the child dies, the issue is to improve the compassionate care leave, so that it should not end with the death, but should perhaps be extended. Under this legislation specifically, the idea is to allow seriously ill children to get better or to live longer, and the same goes for parents.
We are making a distinction between Bill C-44 and what still needs to be improved in the compassionate care leave. So to answer your question, the solution is not in this bill.
[English]
Senator Cordy: Thank you.
Senator Eaton: Were you consulted during the lead up to this bill by Dr. Kellie Leitch, who is, I believe, the parliamentary secretary to Minister Finley?
Ms. Davis: A number of pediatricians were consulted by the bureaucrats in the lead up to this, which we truly appreciate. We also appreciate the opportunity to have input in the thought process and the creation of this bill. They went across the country to meet with a number of different pediatricians because every jurisdiction has a different way of looking at this.
I have spoken to Dr. Kellie Leitch about this. I went to speak to her about something else a couple of weeks ago and this came up. If my understanding is correct, when this bill is passed it will be worked through HRSDC because it is an Employment Insurance issue. I reassured Dr. Leitch of our willingness to work with the department to ensure that the rollout is as smooth as possible.
I spoke about the forms before. It is important that we work together to educate pediatricians and obstetricians on filling out the forms. Even if we make them as intuitive as possible, it does not mean that they do not have a need. We would be very open to working with the government to put together online or live programs. As it happens, the bill will come into effect two weeks after our annual conference in June, which would be a wonderful time to start that education process.
Senator Eaton: Did you have a say in what constitutes a critically ill and a gravely ill child?
Ms. Davis: Yes. As it rolls out, it will be important for members that we help them to understand the difference. Of course, we want to help as many families as possible who are eligible to access this benefit. We want pediatricians to think about this. We also want to pay particular attention to pediatricians who may be working in smaller locations where there are no social workers. If, God forbid, you had a gravely ill child who ended up at CHEO or at Sick Kids in Toronto, there would be social workers available who understand these benefits like the backs of their hands. However, some children will never come into a tertiary pediatric centre and will be cared for in their community. We want to ensure that those pediatricians who do not have access to specialized workers will be able to determine easily whether this benefit is appropriate.
Senator Eggleton: My first question is to the sponsor of the bill, Senator Eaton, as opposed to the witnesses.
Both parents working in a family is common. If a child dies or is critically ill with one of these conditions, are both parents eligible for all of these benefits given that they are both employed?
Senator Eaton: If they are both employed, then they are eligible.
Senator Eggleton: Can they combine the benefits that each would receive as outlined in the bill?
Senator Eaton: Yes, and they can interchange. They can go back and forth.
Senator Cordy: They can interchange, but I am not sure whether they can both stay away at the same time.
Senator Eggleton: They are both employed and they go to these provisions. They have different employers, but the provisions they get from each in terms of the Canada Labour Code time off and the EI provisions would be for both. It would not just be one parent receiving benefits; they would both get them.
Senator Eaton: I can clarify. If they have both paid Employment Insurance premiums, then they are both eligible.
The Chair: We have officials coming to join us for the clause-by-clause study who can probably give that detail. As well, our assistant can clarify that information.
Senator Cordy: I would have said yes, except that the bill says it is interchangeable. When I think "interchangeable," I think one or the other.
Senator Eggleton: I will move to my next question. We will clarify that later.
What aroused that concern was the presentation made to us yesterday by the Office of the Federal Ombudsman for Victims of Crime. Ms. O'Sullivan said:
Therefore, our office will be asking the committee to consider amending and broadening the reach of unpaid leave and income support in order to be more inclusive of the needs of victims of crime.
She specified later what she meant and said:
. . . I would like to highlight that the proposed amendments to the Labour Code need to be more inclusive and recognize the impacts of crime on other family members, for example, spouses and siblings.
Spouses are natural to include, and I would think that they would be qualified automatically. However, she singled out spouses and siblings. She said:
They should also recognize the impact of victimization when someone is older than the age of 18.
We had this discussion about the age and having to draw the line somewhere. The minister felt it could have been drawn at 16 years, but 18 years seems to be reasonable. We talked about the income tax provisions in which a dependent child at home can be well into their twenties, as some leave home and then come back. However, some could become critically ill, for example with cancer, while under the age of 18. It may go on for a number of years. They may find themselves disabled in other ways and be well past the age of 18 when, perhaps, death comes to them.
I want your comments and thoughts about supporting the other people that are involved in the death or critical illness of a child, such as siblings, and about this whole question of whether we are drawing this age limit fairly at 18 years. Should there be some exceptions to it? If so, what are they?
[Translation]
Ms. Page: There are two points if you are talking about taking care of someone who is over 18, in which case we need to ask ourselves whether the parent is needed. Of course, the parent will "want" that, but is it "medically or legally required"? I am not sure. The employment insurance benefit is for the employees and, if it is used to provide support to the siblings, we have to ask whether the brother or sister needs to be present if there is already a parent who provides the care or consent. Of course, I would like this to be an ideal world, but realistically, I would say no.
[English]
Ms. Davis: I will comment on expansion to over the age of 18. Perhaps that can be looked at moving forward after this bill is in place.
The individuals that we should look at it for are young people with severe developmental disabilities who often end up staying at home for a long period of time because they are not cognitively or emotionally capable of living on their own.
Even though they are over the age of 18, they are, for all intents and purposes, still a dependent child more than just the financial definition of "dependants." Those individuals, unfortunately, can get cancer or another grave illness. That has not been studied as part of this bill, and I would not want to hold up this benefit for the parents who need it. Perhaps moving forward that is a group that could be considered.
Mr. Moreau: The short answer to your first question, Senator Eggleton, is that they are adding section 23.2(8) and 23.2(9), which allow for sharing of 35 weeks of benefits for the critically ill situation. Those would not be one after the other, but they could be at the same time. That would be my interpretation because they borrowed the exact language from section 23(1), which is the sharing by parents of parental leave. That is my interpretation. I am not staying for the next part of the meeting, but I would be happy to do so as well.
Senator Cordy: Yesterday I was referencing the definition of a dependent child with the Income Tax Act. If the child was attending school, it was up to the age of 25. I think it would also include situations that you are talking about, namely where a child would be developmentally delayed and unable to care for themselves. I think the Income Tax Act takes that into account in terms of whom you can claim.
The Chair: Thank you very much, witnesses. It has been very helpful. I think we have clarified the two issues around which there was confusion. Mr. Moreau, we will get clarification of your interpretation, but that is my reading of it as well and I think that is what we heard from the witnesses before us yesterday.
Colleagues, we have a couple of experts here to guide us during the clause by clause if there were any technical questions. Would you be prepared to welcome them to the table?
Hon. Senators: Agreed.
The Chair: Thank you very much.
We will now deal with the clause-by-clause portion of this meeting. I want to welcome, on your behalf, two officials from Human Resources and Skills Development Canada who are here to help us with the clarification of issues in the event that there are such questions. We have Jean-François Roussy, Director, Employment Insurance Policy; and Laurent Quintal, Assistant Director, Employment Insurance Policy. Welcome to you both and thank you for being prepared to answer questions.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-44, An Act to amend the Canada Labour Code and the Employment Insurance Act and to make consequential amendments to the Income Tax Act and the Income Tax Regulations?
Hon. Senators: Agreed.
The Chair: Thank you very much. That is agreed.
With leave of the committee, I would like to group the clauses of the bill. Do I have leave to do so?
Hon. Senators: Agreed.
The Chair: Thank you very much. Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the short title in clause 1 stand postponed?
Hon. Senators: Agreed.
The Chair: Carried. Thank you very much.
Shall clauses 2 through to 10 carry?
Hon. Senators: Agreed.
The Chair: Carried, thank you. That is agreed.
Shall clauses 11 through 20 carry? Is that carried?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 21 through 30 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clauses 31 through 37 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the bill carry?
Hon. Senators: Agreed.
The Chair: Carried.
Does the committee wish to consider appending observations to the report?
Senator Cordy: Yes, I do.
Senator Eaton: No.
Senator Cordy: Thank you very much, chair.
The Chair: Does the committee wish to discuss these observations in camera or in the public domain? In public?
Senator Cordy: Public.
The Chair: Thank you very much, but I am required to ask you.
Senator Cordy: Thank you. Since we finished our meeting yesterday evening and I had another meeting this morning, I do not have copies to pass out to everyone. However, I think we get the idea of the general kinds of observations. I think that in the observations we should start out by being positive toward the initiative that the government has taken in terms of helping families who are in crisis, whether it is dealing with a critically ill child or a child who is missing or in some cases murdered. We have to give credit to the government for those things.
I was very taken with the testimony yesterday of the Office of the Federal Ombudsman for Victims of Crime and some of the issues that were raised. One thing that she raised was widening the net for people — that is, expanding the benefits to provide support for families who are victims of crime, and in this case we are dealing with murdered or missing children.
I think one of the observations we should put down is that perhaps in the future, when we see how this bill has worked, how successful it is and what the uptake is, consideration should be given to expanding the benefits to providing support to family members who lose a spouse or a sibling as a result of a criminal activity. That would be the first one. I do not have the wording, but it would be something along that line, just to give a broad idea.
Second, I was also very taken with the testimony, which I thought made a lot of sense, so it would be the same thing, namely that consideration should be given in the future to allow parents who are in this situation the flexibility to split the leave benefit. The bill as it currently stands says that you take the leave, but I think there was very compelling evidence yesterday to say that in fact it might not all be over in a short period of time. In fact, there might be a trial date coming up when the parent would feel that they would have to be supportive at that time or would need the leave at that time. Certainly there would be cases where one would feel that they could go back to work, for example, they have post-traumatic stress disorder. They have gone back to work but are then going to take time off again. I think it is important that the bill be allowed to be put in use, but I think that we have to be aware of testimony that we heard and say in the future, let us consider these kinds of amendments at a future time.
The Chair: On that, could I just ask for clarification. You were saying that spouses should be able to share the benefits. You are speaking with regard to a working spouse, right?
Senator Cordy: No, if I said "share," I did not mean it. I meant to say that you split it in terms of the time — not in terms of the parents, but in terms of you can take 30 weeks now, but then perhaps when the trial date comes up in six months' or a year's time, you could then take an additional four weeks at that time. It is not the split between the claimants; it is the split of the time, the 52 weeks or the 104 weeks.
The Chair: I think there may be some information on this, and I wonder if we could turn to our advisers here today with regard to the specific question because it is really important to know what is allowed in the bill with regard to the additional request that is being made.
Jean-François Roussy, Director, Employment Insurance Policy, Human Resources and Skills Development Canada: The program itself, the grant program, the parents of murdered and missing children —
Senator Cordy: It is a grant; it is not under the act.
Mr. Roussy: Yes, it is not part of the bill.
The Chair: You are referring to the grant.
Senator Cordy: Yes. It is not part of EI.
Mr. Roussy: The way it is designed, the 35 weeks do not have to be consecutive. It has to be taken within one year from the incident or the event. Let us say that my child goes missing. I take 20 weeks and then I realize that I better go back to work. I work five weeks and then I can go back and get the rest of the grant, within 52 weeks of the incident. For example, if a trial is two years later, you cannot collect the remaining weeks three years later.
The Chair: Senator Cordy, that is what I heard yesterday; that is why I asked for the clarification. Is your issue about the one-year aspect? If I heard you correctly, your base request is covered in this context. Could you further clarify?
Senator Cordy: I do have the bill somewhere here. I thought it also went up to 104 weeks.
Senator Eaton: That is for murder. You have two years, if you have a murdered child.
Senator Cordy: It can be up to 104 weeks?
Senator Eaton: It can be for two years. You can take some and, over the course of the next 18 months, if a trial comes up, you still have some time left.
Senator Cordy: But Mr. Roussy just said it is up to 52 weeks.
Senator Eaton: That is for missing —
Senator Cordy: Wait a moment. Which is it, 52 or 104?
Mr. Roussy: I will let Mr. Quintal answer because you are referring to changes to the Canada Labour Code.
[Translation]
Laurent Quintal, Assistant Director, Employment Insurance Policy, Human Resources and Skills Development Canada: At the moment, there are two new leaves under the Canada Labour Code. There is the leave for parents of seriously ill children; this leave is set out so that parents can divide it up and take it at various times. The other leave is for parents of missing or murdered children and it can also be divided up. Parents whose child was murdered may take a leave of six months to get back on their feet psychologically, to go back to work for six months and to attend the court proceedings related to the murder of their child. The proposed legislation includes those types of provisions, which are currently in the Canada Labour Code.
The Chair: Thank you very much.
[English]
Senator Cordy: Thank you. That is not necessary. I am glad I got the clarification because I did not read that into the bill when I got it.
What number two will be, because this has been dealt with, is the difference in the amounts of time that if your child is murdered you get 14 days' continuation of leave after the death of the child. However, in the case of a child who dies because of critical illness, you have to go back to work at the end of the week in which the child dies. The minister referred to the fact that most companies are very kind and have bereavement leave, but that is not everyone. The ones who are most in need would not have access to bereavement leave.
Why is it not the same? That is what I would like in an observation.
The Chair: We will get clarification and perhaps can think of the sense in which you want to put the observation forward.
[Translation]
Mr. Quintal: I am not sure I fully understood your question. Could you please repeat it?
[English]
Senator Cordy: Under the provision of a murdered child, a parent would be able to remain off work for 14 days after the death of the child. For leave where a child dies because of a critical illness, one would be the grant, which would be the murdered child; in the case of the Employment Insurance benefit for taking leave for a child who is critically ill and who dies, the bill reads that the leave ends at the end of the week in which the child dies. Is that not correct?
Mr. Roussy: Yes, that is correct. For the new EI benefit, when the child dies the benefit stops there, which is also the case with the compassionate care benefit as it is right now.
Senator Cordy: We have a bill, Bill C-44, and yet we have differing times. For a parent it will not matter; the child is gone. I am wondering why. There is the difference so I am not going to argue that point. I am going to suggest that in an observation we say that the department — I guess it would be both departments in this case — consider unifying it so that it would be the same.
The Chair: I would like to turn to Senator Eaton first.
Senator Eaton: I would like to remind Mr. Quintal and Mr. Roussy.
[Translation]
In his testimony yesterday, the minister explained that most employers have bereavement leave when a child dies.
[English]
The benefit stops and then you would get bereavement leave.
Senator Cordy: That would certainly be for federal government employees.
Senator Eggleton: There is a lot of part-time, casual employment.
Senator Cordy: Yes, and that is not the argument.
The Chair: Let us be clear here. Senator Cordy is suggesting an observation with regard to those for which there are not additional bereavement plans in place. Is that correct?
Senator Cordy: Yes, and that both departments consider unifying.
The Chair: Mr. Roussy, did you want to add to that?
Senator, do we correctly understand that you want the two departments to consider harmonizing the time available to parents who have lost a child to murder with that available to parents who have lost a child to a critical illness, for those parents for whom employer benefits are not in place?
Senator Cordy: And for those parents who are actually claimants under Employment Insurance.
The Chair: Right, but that would fall outside of employer benefits, right?
Senator Cordy: Absolutely.
The Chair: I think we understand the request.
Senator Dyck: I have another request if we are done with this.
Senator Cordy: I am finished.
Senator Dyck: Sue O'Sullivan, the Federal Ombudsman for Victims of Crime, and maybe one other witness, talked about whether adult children ought to be considered at some point. Because Aboriginal women are six times more likely to be victims of violence and made missing or murdered, I am wondering whether we could add as an observation that at some point in time we should consider the same type of provisions being made available to the families of missing and murdered Aboriginal women, so for the parents of those women who have been made missing or killed as a victim of crime.
I am thinking specifically of a family from Onion Lake that started the whole awareness in Saskatchewan. She is a teacher. Her daughter was missing for four years. They found the body and she is still waiting for the trial six or seven years later. Meanwhile, she does not have provisions like this that allow her a length of time away from work or any other compensation.
If we can add that as an observation, that would be widely accepted and received with gratitude by the Aboriginal community.
The Chair: Senator, I wonder if we could put it in a broader context that would meet your objective and be consistent with the way in which it would need to be dealt with under the law. We did hear witnesses who suggested that adult children in other areas should be considered and that other aspects should be taken into consideration. I think they were suggesting, as were our witnesses today, that they really appreciate this bill. They want to see this go into place, but would like to see the benefits expanded with regard to the age limits.
I know you spoke specifically with regard to Aboriginal women, but in Canadian law it would need to include people in similar circumstances.
Senator Dyck: I think it would be best to include all, but then note Aboriginal women for special consideration. That might give further impetus to the notion that we should be looking at adult children as well.
The Chair: To ensure that I get the sense of this, you are reflecting the witnesses' urging that in the future consideration be given to expanding the age limits for consideration within these benefits and that we note particularly the plea with regard to the Aboriginal women's situation.
Senator Dyck: Yes, "missing and murdered Aboriginal women" would be the wording. It is exactly the same words, "leave related to death or disappearance of adult children, in particular those from Canada's Aboriginal communities."
The Chair: Do I have the sense of that?
Senator Cordy: That could probably fit in with the kinds of things I was saying. I said sibling and spouse. I think adult children could fit in there, but in addition I think it is important to talk about Aboriginal women.
The Chair: Senator Cordy, thank you very much, because I was looking to you and was going to come back to that. You think as well that we might be able to couple that within an observation.
Senator Dyck, would that meet your objective?
Senator Dyck: Yes.
The Chair: Senator Eaton, is that acceptable as an observation?
Senator Eaton: I think that is fine.
Senator Cordy: Thank you, senator.
The Chair: Are there further observations?
Given the time period we are in, could I ask for the committee's permission to give to the steering committee the authority to approve the final wording before it goes to the Senate?
Hon. Senators: Agreed.
The Chair: I sense that the committee has a clear understanding of our objective here, and I am sure that the steering committee can find the wording that will meet the intent and spirit of the observations.
Is it agreed that I report this bill, with observations to be approved by the steering committee of the Standing Senate Committee on Social Affairs, Science and Technology, to the Senate?
Hon. Senators: Agreed.
The Chair: Colleagues, there being no further business, I want to thank the officials who agreed to appear before us to provide clarification to very important, albeit limited, issues.
I also want to thank the committee for the way in which it has approached this discussion. Colleagues on both sides of the table have asked extremely important questions. I think we have identified a bill that is important to Canadians and that our observations may help in the future.
I congratulate and thank the committee. It will be my privilege to report this bill to the Senate.
(The committee adjourned.)