Proceedings of the Standing Senate Committee on
National Finance
Issue 33 - Evidence - June 3, 2015
OTTAWA, Wednesday, June 3, 2015
The Standing Senate Committee on National Finance met this day, at 1:45 p.m., to continue its study on the subject matter of Bill C-59, An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 and other measures.
Senator Joseph A. Day (Chair) in the chair.
[Translation]
The Chair: Honourable senators, this afternoon, we will continue our study on the subject matter of Bill C-59, An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 and other measures.
[English]
In our first panel this afternoon we will be looking at Part 3, Division 3, clauses 44 to 72. It has the heading "Intellectual Property," and it can be found in the English version at page 48 and following.
I am very pleased to welcome, from the Intellectual Property Institute of Canada, Jeffrey Astle, Immediate Past President; and Steven B. Garland, Past President.
They sent the big guns out this afternoon for us. Mr. Astle, I understand that you have some brief opening remarks, and then perhaps we'll get into questions and answers.
Before I give you the floor, honourable senators will have had circulated to them certain written submissions that were sent to us, and I want to put these on the record. The first one is the Federation of Law Societies of Canada, and they make comments with respect to the major portion of what is to be discussed by Mr. Astle fairly shortly. The second brief is from the Canadian Association of Professional Employees. Their brief is in relation to Division 20 of Part 3. Finally, from the Canadian Bar Association, there are certain comments with respect to Division 15, privacy implications. There are the three written submissions that will form part of the record in relation to this bill that we're dealing with.
Mr. Astle, you have the floor, sir.
[Translation]
Jeffrey Astle, Immediate Past President, Intellectual Property Institute of Canada: Good afternoon, everyone.
[English]
My name is Jeffrey Astle, and I am appearing on behalf of Intellectual Property Institute of Canada or IPIC. I serve on IPIC's executive council as the immediate past president. IPIC is the Canadian professional association of patent agents, trademark agents and lawyers practising in all areas of intellectual property law or IP law.
I am an in-house lawyer, patent and trademark agent with the title of intellectual property counsel working for Pratt & Whitney Canada, headquartered in Longueuil, Quebec. IPIC wishes to thank the committee for this opportunity to comment on Bill C-59.
[Translation]
I want to thank the committee members for inviting us today to discuss the budget.
[English]
This bill proposes significant improvements to Canada's IP framework, most notably by establishing privilege to protect confidential communications between clients and their intellectual property advisers from disclosure in court proceedings. This is an issue which IPIC has advocated about for more than 15 years.
To establish patent or trademark rights, a client typically seeks the advice and assistance of patent and trademark agents, who have the expertise necessary to interpret the technical and legal landscape relevant to their client's business, to consider their client's business strategies and objectives, and to advise those clients on how they might use patent and trademark rights to help achieve those objectives. These professionals have the credentials necessary to help clients secure their intellectual property rights.
So that a client may obtain the best possible advice from their intellectual property adviser, the client and adviser must be able to freely communicate all aspects of the client's business strategies and objectives, competitive landscape and challenges, both the client's and the adviser's strategies on how to use intellectual property rights to achieve those objectives in view of the competitive landscape and challenges, and both their strategies for how they plan to secure those rights worldwide through the preparation and prosecution of patent and trademark applications before the Canadian and other national intellectual property offices.
Where these communications are at risk of being disclosed, free communication between the client and their intellectual property adviser is discouraged, which impedes the adviser's ability to work effectively, resulting in less than optimal advice.
In Canada, unlike in other jurisdictions such as the U.K., Australia and New Zealand, confidential communications between clients and their patent or trademark advisers to obtain advice in respect of patent and trademark rights are not protected from forced disclosure in court. This places Canadian innovators at a disadvantage in asserting their intellectual property rights in litigation in Canada, or in other jurisdictions, such as the United States, where the courts would force the disclosure of confidential communications because no protection against forced disclosure was provided in Canada.
Communications between clients and their intellectual property advisers in seeking advice in connection with patents and trademarks should receive the same protection as those communications in respect to advice sought in other areas of the law. In both cases, there is a need for full, free and frank communication between those who need the advice and those who are best able to provide it.
By fixing this gap, Bill C-59 ensures that Canadian businesses can speak openly with their intellectual property advisers to obtain the best possible advice in protecting their inventions or trademarks, knowing that these conversations will not be revealed to their competitors through a court process or litigation. Businesses small and large can now confidently explore the possibility of securing intellectual property rights, knowing that strategic information shared confidentially with their intellectual property advisers will be protected. This will allow Canadian businesses to be more competitive in Canada and overseas.
Bill C-59 allows the Canadian Intellectual Property Office the ability to extend deadlines in case of force majeure events. This will help avoid the unintentional loss of intellectual property rights where, for example, floods or ice storms prevent the timely filing of documents with the office. This is another initiative that IPIC has advocated with the government, and we are pleased to see that the federal government has taken the appropriate steps to fix this issue.
These improvements will not cost the federal government any money.
The protection of confidential communications is consistent with initiatives on this issue taken by many of Canada's most important trading partners and leading innovative economies. It ensures that Canada operates on a level playing field with its international counterparts. With these changes, Canada has taken significant steps to reform its intellectual property system, focusing on giving intellectual property professionals the tools needed to better serve and protect innovators. I welcome your questions. Thank you.
The Chair: Thank you very much. First of all, I'd like to talk about the Federation of Law Societies' letter because that's the only one that addresses the issue before us today. They suggested that there should be further consultation before this particular client privilege portion of the amendments comes into force. They have not asked to appear, but they did send the letter in that regard.
You indicated that it has been over 15 years that your group had been advocating for this privilege. Could you comment on that?
Mr. Astle: Recently there have been consultations, and I believe the federation had an opportunity, as did we, to prepare a response. But as we discussed just before the proceedings, I have been involved in discussions and consultations in which the federation has been party, at least in my experience, since 2004. There has been a lot of discussion on this topic and a lot of opportunity to provide input.
The Chair: Thank you. I think that's important to just get that on the record.
Senator Wallace: Mr. Astle, at this point, regarding protection afforded to someone who wishes to retain an agent and to disclose confidential information, is that handled today through confidentiality agreements between the agent and the client?
Mr. Astle: I would not say necessarily that it is in all cases. Perhaps there are practices where agents would establish some form of confidentiality agreements in connection with those discussions. Certainly, many of the professionals are lawyers in any event, and as may be the normal practice with lawyers, it's not necessarily covered by non-disclosure agreements and the like, when entering into discussions relating to seeking legal advice.
Senator Wallace: It surprises me. If someone has an idea and wishes to protect it, there would be some reservation against telling anybody about it because if the idea gets out there, someone else can take it and develop it. It would just surprise me that a client seeking a patent for an industrial design wouldn't require, or the agent wouldn't propose, a confidentiality agreement to give them the confidence that they can openly tell them all that's involved with this idea and know that it will not be disclosed. It surprises me that that wouldn't be the normal practice among trademark agents.
Mr. Astle: To be clear — I can't answer on behalf of all who are practising. I know that, for example, we establish clear retainers with our legal counsel, lawyers, as well as agents in connection with our work. I just can't speak on behalf of everyone.
Senator Wallace: I suppose that even in cases where there is a confidentiality agreement between the client and the agent, that wouldn't necessarily protect it in the event that there was a legal action somewhere down the road, and the court could require that to be disclosed, despite the confidentiality agreement. I guess that's where this change would protect that, so that confidential information would not have to be disclosed in the event of a legal action. Am I correct?
Mr. Astle: That is correct. The courts have compelled the disclosure in Canada. In fact, there have been instances where foreign agents who clearly have privilege in connection with their discussions with their clients have been compelled to provide those communications, as well, in court proceedings in Canada — and with Canadian lawyers, as well, I guess. That's right, there have been instances. It's very odd. It affects not only agents but also lawyers practising as agents. They have been led to believe that their communications are privileged when in fact the courts have held they are not.
Senator Wallace: I suppose that there are situations where someone wishes to have a trademark registered in Canada but may also wish to have coverage worldwide or in the United States or in other foreign countries. In that case, would you see this bill providing protection, if the information were disclosed outside of Canada? Would it be afforded any protection?
Mr. Astle: The legislation, I guess, would form part of a network. It depends on the jurisdiction and their particular practices, but at least in jurisdictions like in the U.S., the prerequisite for them recognizing privilege in those communications in their courts would be that that privilege existed in the jurisdiction where the communications occurred, such as Canada.
Senator Wallace: Does Canada have reciprocity with any other countries as far as the filing of trademarks and the exchange of confidential information go? For example, are you aware of anything that exists between Canada and the United States in the event that trademarks were registered and information was made available in both countries? Is there any reciprocity to provide protection to that information?
Mr. Astle: There is no reciprocity that I'm aware of. Judicial comity is one principle where the courts will recognize in their jurisdiction concepts from other jurisdictions and give them equal weight, but I'm not aware of any particular treaty that deals with this subject matter.
[Translation]
Senator Chaput: Thank you, Mr. Chair. The division of Bill C-59 on intellectual property talks about privileged communication and the solicitor-client privilege. If you don't mind, could you provide some examples to help me understand the difference? Give me an example of a previously problematic situation that could be resolved by passing Bill C-59. In other words, it would no longer be a problem. Can you give me an example?
[English]
Mr. Astle: I wasn't able to understand the question. Maybe my colleague can provide an answer.
Steven B. Garland, Past President, Intellectual Property Institute of Canada: The senator was asking if there are some examples as to how the new provisions will correct a problem that existed prior to the new provisions.
In the past, there have been a number of court cases where the courts in Canada have required Canadian patent and/or trademark agents to produce their files that had in them the confidential communications with their clients. That had certain implications for the court cases that were ongoing.
As my colleague mentioned, there are also examples where lawyers have been found by the court to actually be engaged or have their patent agent hat on as opposed to their lawyer hat and have had to produce their communications with their client, as well. There have been examples of confidential communications where someone is giving advice to their clients about trademark rights or patent rights that had to be disclosed during the course of litigation.
This provision would prevent that kind of advice having to be disclosed as it has been compelled to be produced in the past. As a result, our approach to those types of communications would be similar to what Australia, England and New Zealand, for example, have as an approach in terms of maintaining the protection against forced disclosure of those.
[Translation]
Senator Chaput: The changes made are positive, and you agree with that?
[English]
Mr. Garland: Absolutely. IPIC, which is comprised of probably close to 1,000 lawyers who engage in patent and trademark practice, is very much in favour of this because it is ultimately beneficial for the Canadian intellectual property owner. That's where the real benefit is, to the owner of the IP right.
[Translation]
Senator Chaput: Did your institute inform the government of those needs, or did the government propose that division of the bill on its own?
[English]
Mr. Astle: Yes, we have been in discussion with the government for some time — in dialogue with ourselves, and other legal organizations have been in dialogue to understand the issue. We have approached them, advocating they make changes to the law.
[Translation]
Senator Chaput: Are there any other changes you would like to see added to this division on intellectual property? Are there any other needs you have identified that have not been considered?
[English]
Mr. Astle: I think that the changes expressed in this bill reflect what we've been looking for. It is yet to be seen how the courts interpret and deal with this to determine whether they're adequate. But on their face, they appear to include what we have been looking for relative to intellectual property advisers and the confidentiality of the communications with their clients.
The Chair: It would be helpful for our viewers who are not here and for honourable senators who are here to understand how one becomes a patent agent in Canada.
Mr. Astle: In my experience, first, you stumble upon the profession, because it was not one that I even knew about when I was studying. My background is in chemical engineering. I have a bachelor's degree and a master's degree. I chose to go to law school. Initially, I was looking at becoming an environmental lawyer. While there, I discovered patent law.
Through my legal training, I studied as any lawyer would. Then, after leaving law school, I worked with a firm in Toronto, learning from patent agents the details of how to parse an invention into its details and write patent applications. I practised for many years, learning in that regard. It was very much an apprenticeship, in a way, learning how to become a patent agent.
Once I was ready, which took some time, I prepared for the patent agency exams, which are administered by the Canadian Intellectual Property Office. I wrote my exams, ultimately passing to be able to call myself an agent. I'm registered to practise as a patent agent.
It's a lot of study. It's a difficult slog; the exams are not easy to get through. It's quite an arduous process to get on the register as a patent agent.
The Chair: And the Canadian Intellectual Property Office is a Government of Canada office, so the Government of Canada is licensing or authorizing individuals to call themselves patent agents after they have gone through a qualifying set of exams, as you've described. Is that correct?
Mr. Astle: The agency administers exams. They sit annually. There is a set of exams — four four-hour exams in total. It's a week-long process. Once you have managed to pass all of those, then you're added to the register.
The Chair: To finish that off, you have a legal background as well, but there are patent agents who are not lawyers; is that correct?
Mr. Astle: Yes, sir.
The Chair: Would they go through a similar type of qualifying process?
Mr. Astle: Yes, they would. They tend to work with a firm, under an agent's wing for some time to learn how to draft an application, claims, and understand the prior art, and also craft claims as necessary to protect their clients' innovations. They then write the exams, as well. Everyone writes the same exam.
The Chair: Thank you for that.
Senator Gerstein: Do I understand, Mr. Astle, that what you have said is that all lawyers are not patent agents and all patent agents are not lawyers?
Mr. Astle: Correct. I had to imagine the Venn diagram.
Senator Gerstein: I thought so. Thank you for clarifying that.
The Chair: Under the heading of intellectual property that we have here is "industrial design, patents and trademarks." Does this apply to industrial design, as well, or is this for patent and trademark agents only?
Mr. Astle: The provision with respect to patents speaks of the protection of an invention. It's yet to be interpreted, obviously, but often a client will come to an agent and say, "I would like to protect my invention." That may end up being protected as an industrial design, depending on the nature of the concept. Typically, when the client approaches the agent, they themselves are not clear on the various forms of intellectual property protection available. That works its way out in the process.
Senator Mockler: Some people would tell me not to go here with my next question. I know the challenges we have with IPOs in agriculture and forestry, which is quite challenging to some extent. We are watching it carefully because on the Standing Senate Committee on Agriculture and Forestry we have a lot of those concerns when it comes to intellectual property.
My question is, insofar as what I have heard from Senator Chaput about solidifying your next course of action, as you have mentioned, where are we with patents and intellectual properties in space-related inventions?
Mr. Astle: At Pratt & Whitney, we only make it to aerospace; we haven't made it to space yet. I'm not as informed as I might like to be to respond to your question, but I suspect that companies that are working on developments related to things in space are trying to protect them.
Mr. Garland: I work at a law firm as opposed to being in-house. We represent clients in that area of technology, but I can't talk about it because it's privileged.
The Chair: We haven't passed this yet.
Senator Mockler: This is where maybe we could include it.
In respect to what you just said, chair, to the witnesses, the partners that we have seen are trying to give it a framework. The partners are Canada, Japan, Russia and the United States.
Since you do not have the information or the experience to some extent, except with the aerospace industry, I would like you to provide an answer to the question I just posed to the clerk and the chair of the committee. This is the next venture where we're going — that is, space and intellectual property.
The Chair: Presumably, we could ask for an undertaking in a general sense. As Mr. Garland pointed out, he can't divulge any solicitor-client privilege or any confidential information. If it would be helpful for you, I think he's already said, in a general sense, that there are research and development initiatives related to outer space and there are clients trying to protect some of that research and development.
Senator Mockler: ISS, which is the International Space Station, also offers an appropriate test case, and I quote, " . . . for reviewing the effect of a legal framework on intellectual property rights in outer space." I bring that to your attention because we are the leading country when it comes to the arm Canada has invented. It is the icon of the space industry.
The Chair: Thank you very much. I think we won't need the undertaking, based on that. He has the information that he was looking for.
Senator Smith is the deputy chair of the committee, and he's from the Montreal area.
Senator L. Smith: Gentlemen, I'm not sure if you've discussed it already, but how do Canadian patents stand up against international competition? What issues do we have in terms of one country respecting the patents of another? You read about it in the papers and some of the issues that arise. Do you have any comment or anything you could share that would help us understand where our patent law is versus some of the other developed countries in the world?
Mr. Astle: That's a big question. First of all, the patents, for example, are enforceable only in the countries in which they have been issued. Canadian patent exists in Canada and only in Canada. Depending on where a company wishes to seek protection, they may, from an application they filed here or elsewhere, file similar applications in other countries in the world. That's basically a decision made based on the cost of doing so and on the type of commerce going on in that country relative to that company's interests.
Where are we relative to others? Recently there have been some modifications to the law to bring the laws of Canada up to meet some treaty obligations. There are more on their way. I believe it's always a moving target, but Canada is moving in the right direction and getting closer to meeting its treaty obligations relative to trademark laws, patent law treaty and industrial design law changes on the international scene.
Senator L. Smith: Could you give us an example of how we've modified or improved our patent laws versus going to other countries? I'm not trying to be silly, but it is at this level of sophistication and ours are at this level; that is, ours are here and theirs are there. What major change or improvement have we made in the recent past that catapults us to a higher level?
Mr. Astle: I'm trying to think of what would be a good example of that. If we're talking about patent laws —
Senator L. Smith: You pick the industry to give us some form of concrete example so that we can have a better understanding of it. My understanding is that each country would have its own patent law. We have patent law for ABC corporation in Canada. ABC corporation has multiple plants throughout the world, maybe in five other developed countries. They want to establish a patent in that country also.
In the past five years, have we made changes to our law or improved ourselves to a point where we've strengthened our position in terms of our ability to deal internationally in terms of that?
Mr. Garland: I might be able to answer your question, senator. In the last four or five years, there is nothing specific of real significance to point to. Over the past 10 to 15 years, though, Canada has done a good job, I think, of working hard so that for the most part, though not completely, a great deal of harmonization has taken place between our domestic patent laws and the patent laws of other jurisdictions.
A number of treaties, for example, exist where somebody can file an international application and ultimately it can make its way into Canada and literally hundreds of other jurisdictions.
Also, the CPO has been quite proactive in the last three or four years developing arrangements with other patent offices for something called the Patent Prosecution Highway, PPH, which means if you get a patent issued here in Canada there are ways that in a relatively short period of time you can get patents in some of the other countries that are part of this Patent Prosecution Highway. There are arrangements with other patent offices around the world to be able to use the work that's been done before the Canadian patent office to help assist in getting patents in other countries more quickly. There is a great deal of harmonization and interconnectivity between different patent offices around the world. CPO, I think it's fair to say, plays a big part in that.
Senator L. Smith: I'm not sure if we had you here as witnesses, but didn't we deal with changes to patent law dating back to the 1990s? Some major international patent laws were created at that time that formed the basis for patent law today.
Mr. Garland: That would be the Patent Cooperation Treaty. That's the international treaty that allows one to file a single application, but ultimately it can find its way into any number of different domestic patent offices.
Senator L. Smith: Is it fair to say that forms the basis for patent law today? Would the changes be more superficial at this particular time, adding on to the base law created at that time?
Mr. Garland: I wouldn't say superficial. The Patent Cooperation Treaty plays a big role in how a Canadian or a non-Canadian files a patent application in most cases.
The Chair: As you can tell from Senator Smith's questioning, this committee has dealt with other initiatives and other changes to the Patent Act along the way.
I recall changing to first to file, and then there was the length of the patent and publication. All of those are just incremental changes to bring Canada into line with our international treaty obligations and other jurisdictions.
Senator L. Smith: Excuse me, chair and witnesses, for using the word "superficial." I didn't mean to denigrate.
The Chair: You'll note that they didn't agree with you.
Senator L. Smith: I know; I could sort of see that.
The Chair: The only other point that would be helpful is one other area of intellectual property, copyright. It's a major area, and we have done some work on copyright in the past in this committee. Is this initiative with respect to privileged communications something that is necessary or desirable from the copyright point of view?
Mr. Astle: It's not part of the legislation. I don't think it's necessary as part of the legislation. Copyright exists as of when something is put into material form, once it's been created and put in place. Legal advice relative to that is typically with a lawyer, in any event, and would be privileged in the normal course, I would say.
The Chair: Thank you. Seeing no other senators, Mr. Astle, Mr. Garland, thank you very much for appearing here and helping us to understand this interesting area of intellectual property. Congratulations to you and your profession on achieving this privileged communication initiative that you have been looking for for some time.
Mr. Garland: Thank you.
Mr. Astle: Thank you.
The Chair: I expect this legislation will ultimately pass. I'm congratulating you in advance. Thank you.
Our next panel will be on clauses 73 and 80, Part 3, Division 4, the compassionate care leave and benefits section. That can be found at page 61 of the act.
From the Canadian Home Care Association, we're very pleased to welcome Nadine Henningsen, who is the executive director of that association.
In keeping with our desire to talk to people who are impacted by proposed changes in the legislation, we're very pleased that you could be here. Could you tell us a bit about this particular initiative and your assessment of the initiative?
Nadine Henningsen, Executive Director, Canadian Home Care Association: As the Executive Director of the Canadian Home Care Association, I would like to thank you for the opportunity to appear before you and to provide the home care and family caregiver perspective on Bill C-59, specific to the compassionate care leave and benefits.
The Canadian Home Care Association is a national, not-for-profit membership organization dedicated to advancing excellence in home care. Our members of the association are diverse, and they include all provinces and territories. One of our goals is to ensure that all Canadians have equitable access to high-quality care at home. Caring for individuals at end of life is fundamentally different from care in another context in two very important ways.
Dying is inevitable for all disease trajectories, differing only in timing, predictability and symptomology. Palliative care is aimed at the relief of suffering in order to improve the quality of life. Although palliative care may alter the quality of life, survival is, in itself, not the primary goal of treatment.
Death and the process of dying are intimately associated with the provision of care by family caregivers. The unpredictable timing of death and the fact that caregiver support is vital to enabling a person to choose to die at home are very significant ways in which palliative care is different.
Home death is the preferred option for most patients. In order to achieve a good death in the home, family caregivers are an essential part of the care team. According to Statistics Canada, 13 per cent of Canadians, or 3.7 million Canadians aged 15 and older, reported providing quality end-of-life care or palliative care to a family member or friend at some point in their lives.
We are encouraged by Bill C-59 and the extension of the compassionate care benefit, which will make a substantial impact on Canadians who are at their most vulnerable. The increase of the benefit compensation to 26 weeks from its original six weeks means that caregivers' needs for financial assistance are being recognized and addressed.
I would, however, like to pose a consideration to ensure that the outcomes of the compassionate care benefit meet the intended goal to provide financial support for caregivers.
The current eligibility criteria of providing care and support for a gravely ill family member at risk of dying within 26 weeks is not an accurate reflection of palliative care. Palliative care is now being considered much earlier in the illness trajectory, preferably at the time of diagnosis but, at the very least, when the illness is deemed life-limiting. Since 2002, the World Health Organization has defined palliative care as being applicable for patients with life-threatening illness. In many palliative care programs across the country, a guideline physicians apply when determining when a patient is palliative is to ask themselves, do you think your patient will die in the next year? This question acts as a litmus test and allows the care team to gauge the seriousness of the patient's situation. The six-month or 26-week time frame is, unfortunately, just an eligibility restriction that health care programs use because they don't have sufficient resources to care for everyone needing palliative care. To ensure the compassionate care benefit meets the real needs of family caregivers and their dying loved ones, we recommend that the eligibility criteria of gravely ill family members at risk of dying within 26 weeks be modified to a gravely ill family member who has been diagnosed as palliative.
Although this modification will not address the needs of many caregivers who provide care for loved ones with chronic and episodic conditions who have not yet accepted a palliative diagnosis, it will address a greater breadth of caregiving needs than the current criteria do. An extension of the compassionate care benefit is a significant step forward in supporting family caregivers and individuals at end of life. We look forward to working with governments and stakeholders across the country to increase awareness and understanding of this benefit so that we can ensure that Canadians can have access to the support they need when they need it.
Thank you again for allowing my organization the opportunity to share the voice and needs of family caregivers with you. I look forward to answering your questions.
The Chair: Thank you very much. As to the amendment that you proposed, first of all, you said rather than a significant risk of death within 26 weeks, someone who has been diagnosed as palliative.
Ms. Henningsen: Yes.
The Chair: Is that an objective enough test? Will we have one doctor saying, "No, she's not palliative yet, but maybe later on?" Are we going to get into that debate?
Ms. Henningsen: Candidly, the debate is happening now. It is very difficult to determine exactly when an individual is going to die. There is a movement across Canada right now to encourage doctors and specialists to use the litmus test of "will you die within a year?" That seems to then move individuals into palliative care services. However, the current compassionate care benefit is for a death diagnosis within half a year or 26 weeks. It's a bit out of balance with how we're diagnosing versus how we're accessing the benefit.
The Chair: Can I take it that your suggestion is that you would like to see the Canada Labour Code amended so that there is a significant risk of death within 52 weeks?
Ms. Henningsen: Yes, we would be happier with 52 weeks, but what we would really like to see is when a doctor diagnoses an individual as palliative.
The Chair: I'm looking for an objective rather than a subjective test.
Ms. Henningsen: Then I think 52 weeks would align better with the tools and the resources being provided to doctors because they look at a year. That seems to be when someone is diagnosed as palliative. I would say 52 weeks would align better with the practice that's happening.
Senator Chaput: In regard to palliative care, how is it presently defined by the medical profession? Is there some definition besides the 52 weeks we were talking about? Do you have a definition that can be applied, or is it according to each case?
Ms. Henningsen: It's according to each case. The guideline truly is, "Would you be surprised if your patient died within the next year?" That is a good test that physicians use. Then a whole conversation happens with the care team, the family caregiver and the individual that says, "We now will stop active treatment." Then we will go into palliation, which is management of pain and symptom management.
Senator Chaput: At the present time, there is no real definition as such except what you have just told us?
Ms. Henningsen: Yes. You can't define when an individual will die. Often an individual may be diagnosed as palliative and they may live for two years.
Senator Chaput: I see. So the extension from 26 to 52 weeks might not be enough?
Ms. Henningsen: Potentially. Currently, a national program is being rolled out to the provinces and territories, looking at the concept that you are palliative when you are diagnosed with a life-limiting illness. At the beginning of diagnosis of a life-limiting illness, we should start to consider advanced care planning and the different pieces of palliative care.
Active pain and symptom management usually kicks in around one year. Unfortunately, it's not cut and dried, and that is a huge challenge that physicians and caregivers face and we face as a health system across the country.
The Chair: Is this an initiative that your association has been urging upon the government?
Ms. Henningsen: Very much so. The compassionate care benefit is one of the key pieces of what we believe we need to support family caregivers. It is looking to alleviate the financial burden that is placed on family caregivers. Often, as you know, when you take on the role of a family caregiver, you have to take a step back away from your job, and there are out-of-pocket expenses. One of the pieces that we have been actively encouraging the government to do is not only have the compassionate care benefit but also the extension of the compassionate care benefit.
The Chair: There are two statutes that are being amended. The first one is the one that gives leave under the Canada Labour Code. Let's talk about that for a moment. That's a federal statute that applies only to employees of federally regulated businesses. What's happening in the provinces?
Ms. Henningsen: The provinces each have had to amend their labour codes, too. With the eight-week leave, finally we have all the provinces on board. I believe Alberta just came on in the last 18 months. We now have all the provinces on board and amending their leave. After this passes, the provinces and territories would have to look at their labour codes, too.
We're pretty encouraged that they will do it, because we do know that provinces and territories are very much recognizing the role of family caregivers and are seeing that family caregivers are integral in the ability to manage their health care costs. We believe it will be a domino effect, but it's not a slam dunk.
The Chair: You are anticipating that the other provinces will have similar provisions?
Ms. Henningsen: Yes.
The Chair: The second law that we're amending is the Employment Insurance Act. The Canada Labour Code provides for the leave, and the Employment Insurance Act provides for some compensation. Is that correct?
Ms. Henningsen: Yes.
The Chair: It's a significant increase from six weeks to 26 weeks of compensation? Is it in the Employment Insurance Act? Is that the right place to have this type of program?
Ms. Henningsen: It's a good start. One of the challenges of having this program under the Employment Insurance Act is that you miss out on all the caregivers who are part time or, let's say, an older caregiver who is not employed. So there is a breadth of caregivers that you are missing out on. Approximately 6.1 million caregivers are actually balancing their work and caregiving duties. We will certainly reach the lion's share of caregivers, and that is a positive step forward.
The Chair: Is anything being done to help those others who are not paying into Employment Insurance and therefore wouldn't be eligible to make an application for benefits?
Ms. Henningsen: From the federal government, no; from some of the provincial governments, yes. There are caregiver allowances in two of the provinces: Manitoba and Nova Scotia. Given a certain financial threshold, caregivers receive allowance which offsets financial burden.
The Chair: Generally, you're in support of this; it's a step in the right direction.
Ms. Henningsen: Yes.
The Chair: Thank you. Seeing no other honourable senators wishing to engage in discussion, we thank you very much, Ms. Henningsen, from the Canadian Home Care Association. We appreciate your taking the time to come to explain your position.
Ms. Henningsen: Thank you.
The Chair: Our third and final panel for this afternoon relates to the sick leave and disability program, Part 3, Division 20, clauses 253 to 273. It starts at page 147 of the act.
We are pleased to welcome in in this next panel, from the Public Service Alliance of Canada, Chris Aylward, National Executive Vice President; and Liam McCarthy, PSAC Negotiations Coordinator. From the Professional Institute of the Public Service of Canada, we welcome Debi Daviau, President, and Isabelle Roy, General Counsel.
I understand that each organization will have brief opening remarks. Perhaps we could begin with Mr. Aylward and then we will move to Ms. Daviau afterwards.
Chris Aylward, National Executive Vice President, Public Service Alliance of Canada: Thank you, honourable senators, for the opportunity to appear today on Bill C-59. I will be presenting our union's position on the bill, and our coordinator of negotiations, Liam McCarthy, will assist me in answering your questions. I will address Part 3 of the bill, Division 20, on sick leave and disability programs.
Since 2007, the Supreme Court of Canada has issued a number of important rulings on the subject of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms. The court has made it clear that the Charter protects the right to free collective bargaining. It guarantees that workers possess the right to join together to collectively present demands to their employers and to engage in a meaningful dialogue.
The court has also imposed constitutional obligations on governments in their role as employers. As employers, they must agree to meet with unions and bargain in good faith. And they must not enact legislation that substantially interferes with the ability of a union to bargain work place issues.
International human rights and labour laws also protect collective bargaining as part of freedom of association, including the International Labour Organization's Convention No. 87 concerning the freedom of association.
Yet, in spite of international conventions and Supreme Court decisions, the federal government continues to interfere with the bargaining rights of our members and continues to interfere with the ability of their union to negotiate freely. Unfortunately, Bill C-59 is just the most recent act by the government to deny its employees their constitutional rights.
In 2013, budget implementation Bill C-4 significantly undermined the long-standing mechanisms that were in place to ensure the effective resolution of disputes. It skewed the balance in favour of the employer and the government by limiting the rights of union members and restricting the role of labour relations boards and adjudicators.
PSAC started a legal challenge against these changes soon after Bill C-4 was passed.
In Bill C-59, Division 20 authorizes Treasury Board to modify the sick leave provisions of its collective agreements. It also allows them to unilaterally impose a short-term disability plan outside the collective agreements. Treasury Board will have full control to design these plans and to modify the terms of the current long-term disability plan. It will also be able to alter sick leave entitlement and the carry-over of unused sick leave, regardless of what is in our collective agreements.
About a year before PSAC and Treasury Board were scheduled to start bargaining, the government started its campaign to get rid of the current sick leave provisions.
They started by releasing statistics about the use of sick leave in the federal public service in an effort to sway public opinion. Their statistics were later called into question by both Statistics Canada and the Parliamentary Budget Officer.
Then Treasury Board communicated directly with it employees about its new work place wellness and productivity strategy. They talked about the new sick leave regime, leading employees to believe it was a done deal.
The government's next step was to include $900 million in so-called savings from accumulated sick leave in its latest budget in order to fund a projected surplus. Now it is taking the final step of using its power to unilaterally change our collective agreements.
It is very clear that the government has predetermined the outcome of negotiations. This offends the Charter right of our members to free collective bargaining. It is completely inconsistent with section 2(d) of the Charter that calls for a meaningful process of collective bargaining. We believe that collective bargaining works when both parties are able to negotiate freely.
In this latest round of negotiations with Treasury Board, PSAC is pursuing proposals to improve the health and well-being of our members at work. We know there has been a significant growth in long-term disability claims related to mental health issues. Sick leave usage is directly related to this increase in claims as members must use their banked sick leave before they can transition to long-term disability.
Recognizing the importance of this issue, we tabled a proposal and were able to reach an agreement with Treasury Board to create a joint mental health task force. This just begins to address the problems, but it is a good start. This is another reason why Division 20 is such a problem. Unilaterally changing their sick leave protection just adds to our members' stress at work. It is an affront to employees with health issues, both mental and physical.
We ask the committee to give serious consideration to removing Division 20 in its entirety from the bill, upholding our right to negotiate our collective agreements free from the threat of legislation.
The Chair: Thank you very much. We will now go to Ms. Daviau.
Debi Daviau, President, Professional Institute of the Public Service of Canada: Thank you very much, honourable senators. At the risk of wasting some time, I wish to thank the Honourable Senator Bellemare for her timely interventions on Bill C-377. We very much appreciate it when the Senate brings additional arguments to the cases at hand.
I thank you for the opportunity to make submissions before you today in relation to Division 20 of Bill C-59 on behalf of the nearly 55,000 members of the Professional Institute of the Public Service of Canada.
The vast majority of the institute's members are professionals providing public services in federal departments and agencies who are currently in the process of negotiating collective agreements.
The members I represent are directly affected by Division 20, which grants Treasury Board unilateral power to impose whatever terms and conditions it wants in relation to sick leave for whatever employees it wants within the core public administration, whenever it wants and for as long as it wants. We believe that Division 20 is unconstitutional and fundamentally flawed and, as such, should be struck entirely from Bill C-59.
In the brief time that I have today, I will take you through the institute's concerns, which are laid out in much more detail in our written submissions provided to the committee.
First, Division 20 is unconstitutional. Just last winter, the Supreme Court of Canada stated that section 2(d) of the Charter protects the rights of employees to engage in meaningful collective bargaining and the right to strike. This proposed legislation violates both of those rights by effectively preventing meaningful bargaining and striking over an important workplace issue.
Bill C-59 stacks the deck against the unions at the bargaining table by granting to Treasury Board, the very party negotiating with us, the power to unilaterally impose terms and conditions related to the employer's only substantive issue in this current round of bargaining: sick leave. At any time, even in the course of bargaining, Treasury Board can decide to implement the terms it wishes and simply wipe out existing sick leave provisions contained in collective agreements, gains made by unions in good-faith negotiations over the years.
Second, Division 20 is an affront to the rule of law. The proposed legislation also allows the employer to override the statutory freeze provisions recently highlighted by the Supreme Court of Canada. This important statutory protection under the Public Service Labour Relations Act ensures that an employer does not change terms and conditions of employment while bargaining is under way. In effect, Division 20 is legalizing an unfair labour practice by the Treasury Board.
Even more shocking, Division 20 is drafted so that any order issued by the Treasury Board relating to sick leave would not have to meet the test of Charter compliance as it normally would pursuant to the Statutory Instruments Act. This is nothing less than a direct affront to the rule of law.
Third, Division 20 will undermine public services to Canadians. The government's proposed plan related to sick leave and disability is bad for public servants, bad for public services and bad for Canadians. In many cases, public servants will have to either take unpaid sick days or go to work sick.
What is more, there is no evidence to support the government's claim that this approach will result in savings. The $900 million of supposed savings reported in the Budget 2015 is nothing more than a convenient artificial accounting exercise that contributes to a pre-election balanced budget without representing any real savings. The drive to get this so-called unfunded liability of banked sick days off the books does not reflect the fact that public servants off sick are most often not replaced. The additional workload is simply picked up by their hard-working colleagues.
Worse yet, the government has conspicuously failed to account for the additional costs their proposal to move to a privately managed plan will dump on taxpayers.
To conclude, on behalf of the 55,000 professionals and scientists that PIPSC represents, I urge the committee to defend the credibility of Parliament's law-making powers which must respect the Canadian Charter of Rights and Freedoms. Division 20 of Bill C-59 is unconstitutional and an affront to the rule of law. I urge you to reject it.
Thank you.
The Chair: Thank you to each of you. You've made your points clearly. I will now go to senators who wish to engage in a question and answer period.
[Translation]
Senator Bellemare: Thank you. I have two questions. The first has to do with the costs related to division 20, to the measures the government must implement to make the changes to the sick leave system requested by the Treasury Board Secretariat. You say that sick leave costs the government $900 million, or a passage in the budget suggests that the cost is $900 million, and that the additional $900 million in revenue will be used to balance the budget. I would like to get a better understanding of that.
[English]
Ms. Daviau: Thank you for the question. Clearly the government is booking, in this year's budget, $900 million in savings and an additional $250 million in the subsequent two years, amounting to a total of $1.4 billion. The $1.4 billion figure that the government is booking is an accounting value of the entire bank of unused sick leave for public servants, so the entire bank of $5.2 billion or $5.3 billion. However, that $1.4 billion represents the accounting value should they write that unfunded liability off the books.
Essentially what the government has proposed through the budget implementation act is to eliminate our sick-leave banks, which is a negotiated provision of our collective agreements. Because most public servants — and there are some notable exceptions like in prisons or in certain health care environments — are not replaced when they're off sick.
So the bank, if you will, is not actually a liability to the government, and eliminating the bank doesn't put more money in the government's coffers. That amount of money represented more than half of this government's surplus on the budget implementation act and it's an amount of money that doesn't exist. It is merely an accounting exercise, a fictional accounting exercise if you will, and is not true and honest to what it is actually trying to accomplish through this act.
[Translation]
Senator Bellemare: My other question has to do with retroactivity. Are there any retroactive aspects to Division 20? In other words, are any accumulated rights not being honoured or does this only matter in the future?
[English]
Ms. Daviau: It's definitely a fundamental concern of ours because it tramples over many years of precedence, negotiated rights and agreements that we've come to, having given up other things.
For example, when we first negotiated sick leave provisions and banks, we gave up something else. We made a compromise to get there, and now the thing that we've compromised for could be unilaterally taken away. The most retroactivity would apply to the banks. We have members who have years, sometimes, of unused sick leave stored up in the bank. They retire, they leave it there, they can't cash it out, so it is not truly a government liability. Nonetheless it is something these people earned and collected throughout their entire careers that is now at risk of being wiped off the books.
[Translation]
Senator Bellemare: That is what I am trying to understand. We know that, sometimes, in the case of banked sick leave, when approaching retirement, some workers will retire earlier using their accumulated sick leave. Does the legislation make leave accumulated over time disappear for some individuals, or are there provisions that recognize previous gains and rights and take them into account going forward? That is what I am trying to find out.
[English]
Ms. Daviau: The amount of money the budget bill has spoken to, in terms of the unfunded liability of the sick banks, represents the entire bank of all of the public service. It means they plan to remove the entire bank of accumulated sick leave for all 250,000 or so core public administration workers.
[Translation]
Senator Bellemare: My question is about the data on sick leave I have already considered, and I would like to hear your comments. I looked at the data on sick leave in the private and public sectors. Generally, the number of sick days is higher in the public sector than in the private sector, and there is speculation that the disparity has to do with the way sick leave is negotiated. Do you have any comments on that?
[English]
Ms. Daviau: Certainly the real statistics that we saw from both Statistics Canada and the Parliamentary Budget Officer indicated a slight difference between use of sick leave in the public sector versus in the private sector. We believe some of the analytical arguments around that; the demographics in the public sector are different from the demographics in the private sector. There are a number of older workers in the public sector. There are also demographic issues such as women, people with children, families; and all of those things factor into use of leave more than, say, what provisions you happen to have.
We believe firmly that the fact that there is a $5.2 billion bank of unused sick leave sitting there demonstrates firmly that there hasn't been any abuse of the current system that many public servants are using, and I believe the average number was about nine days as opposed to the 18 days, for example, that Minister Clement spoke about at one point. The real statistics show that there is barely a difference between public and private sector sick-leave use, even though ours is funded this way as opposed to private sector funding.
Mr. Aylward: Senator Bellemare, going back to your initial question, which was how much Division 20 is going to cost, I think that is the question and not so much how much it will cost the government but how much it will cost the taxpayers of Canada by trying to implement Division 20 and implementing a short-term disability plan and removing what's managed internally out to a private sector firm. That will cost a fair amount of money. What it will cost is anyone's guess, but it will certainly cost a lot more than what it's currently costing for it to be managed internally.
In respect to the days between the public and private sectors — I'm not going to repeat everything that Debi said — the other issue is that a lot of the private sector employers do not have sick leave at all. That's obviously an issue.
[Translation]
Senator Chaput: My first question is supplementary to Senator Bellemare's questions. I want to make sure that I understand properly. I want some clarification about retroactivity. As I understand it, the sick leave bank — days that have accumulated because they have gone unused — was probably part of your negotiations at some point, and you may have compromised in other areas to keep that bank. Now, this bill, with its retroactive provisions, is completely wiping out the sick leave bank. Is that basically what is happening?
[English]
Ms. Daviau: That's correct. I couldn't have said it better myself. Quite frankly, they have been a little bit sneaky about the numbers by booking only the $900 million in savings this year and an additional $250 million for the subsequent years, so you end up with this number and no one knows what it means.
What it does mean — because we represent a number of chartered accountants that work for Canada Revenue Agency — is that it reflects the actual accounting value of the leave bank, should they ever have to book the amount that the liability refers to.
It is a standard accounting practice to do that. What's notable is that they've chosen to do it at this point.
[Translation]
Senator Chaput: There are surely rules to be followed when it comes to sick leave and how it is used by the members of the various associations. That sick leave is a right that people can use when they are sick. It cannot be used for any other purpose, correct?
[English]
Ms. Daviau: Correct. That's the job of management in government, currently, and that's what my colleague, Chris Aylward, was referring to. There are people currently within the government whose job is to do attendance management and ensure proper backup when people are sick.
For example, if somebody is seen to be abusing, there are already mechanisms in place for management to follow up with that person. Despite some of the rumours, what we don't see in any of our membership is people taking these long-term leaves just to blow their bank at the end of their career. We're in fact seeing the opposite. People at the end of their career just seem to become more and more committed to their work that they've been doing their entire lives.
As we say, the very fact there is this $5.2 billion in unused sick leave is really the biggest demonstration of the fact that there is no abuse of the system as it stands today.
[Translation]
Senator Chaput: Division 20 of Bill C-59 is the part you would like to see removed. Were you aware of the changes the government wanted to make that are included in Division 20? Did you have an opportunity to discuss that with Treasury Board officials?
[English]
Ms. Daviau: No. We were notified by our Treasury Board counterpart on the day the budget implementation act was tabled that this is what it contained.
Certainly, we knew throughout the bargaining process that this was a priority of the Treasury Board at the bargaining table. I guess what most of us could never have conceived is that they would disregard all of the enshrined processes and laws surrounding the process of free and fair collective bargaining to get there, so that does come as some surprise to us.
The Chair: My recollection is that when the government was here, they indicated that the banked days of sick leave were being negotiated at this time, and they had made an offer in relation thereto. Is that correct information?
Ms. Daviau: The offer is to eliminate the sick bank entirely. Yes, they have made an offer. We have been at the table and continue to be at the table proposing alternative solutions in order to help modernize the sick leave regime. This government is very committed to this one solution and is willing to change the laws to get there. That's very unfortunate because there is an accepted, long-term process around collective bargaining, and there are a bunch of laws and precedents around how that needs to go for us to get to a meaningful agreement. The government is willing to take all steps — illegal, from our point of view — to get to where they want to go without respecting our right to free and fair collective bargaining, which is protected under the Charter of Rights and Freedoms, section 2(d).
The Chair: There hasn't been an offer that in lieu of having the banked sick days, a certain number of days would be available to you?
Ms. Daviau: No. There are various discussions ongoing around the agreement in lieu of the elimination of sick leave, of the banks, if you will. I think the current proposal, and it has been adjusted as we go, provides for something like about 10 cents on the dollar, if you will, for using your sick leave to potentially top up during lower-pay periods.
Again, it's the base solution here that's the problem. We are not at issue around whether or not we need to keep sick leave banks. We are at issue over the right to free and fair collective bargaining, and the tendency of this government, whether it was through the Expenditure Restraint Act, Bill C-4 last year and now Bill C-59 this year, to try to do away with free and fair collective bargaining through the budget process, and that's of deep concern to us.
Liam McCarthy, PSAC Negotiations Coordinator, Public Service Alliance of Canada: To add to that, up until we had this dropped upon us, we were in bargaining, and the employer did have a proposal at the table that was just minor tweaks on small amounts of utility, of the existing sick banks, so there was, as Debi was describing, the ability within that short-term disability plan to top up to 80 per cent or 90 per cent. There are minor variations on that, but the fundamental difference we see in front of us now is that they have gone from a process of bargaining where they have their positions on how to improve sick leave, and we have our positions on how to have a healthier workplace and make improvements, as Chris Aylward suggested, around mental health to try to address some of the issues we see as well. But now that this has come in, we can talk and we can continue to exchange proposals, but ultimately, they will now have the provision, assuming this passes, to be able to impose whatever outcome they like, so obviously it's a departure from a negotiations process where they have had minor variations on their position since the beginning.
[Translation]
Senator Chaput: I would also like some clarification on the negotiation process. The sick leave bank is disappearing. Each year, you are entitled to a certain number of sick days, right? So many days per month. Once the bill is passed, will those sick days disappear at the end of the year if you have not used them? Moreover, you will no longer have the right to accumulate them.
[English]
Ms. Daviau: The current proposal has so few days that we don't expect any of them to accumulate, to be frank. Public servants, for example, who are getting ongoing treatment, like radiation therapy for cancer, each time they go to a radiation appointment, they have to take sick leave. It isn't another type of leave, so it's not long before your six days are done. For example, if you get a terrible flu or bronchitis or pneumonia, your six days are done. At that point, the government's proposal has our members off on leave without pay for one week before they can even begin to access any other plan for sick leave. It means the vast majority of our members will find themselves in the position of having either to take unpaid sick leave at one point during the year or to come in to work sick, which is, unfortunately, the option that many will take because they can't go without their pay.
Mr. Aylward: Just to your question, senator, if Bill C-59 passes, that doesn't mean automatically it's done. I want to make that point. What they've done in Division 20 is given Treasury Board basically the unilateral right to go and do it at any time within a four-year period. I want to make that clear. If Bill C-59 were to pass in its current state, nothing will happen to our members' sick leave banks until Treasury Board decides to do so, or the cabinet, because it would take an order-in-council to implement that. It's not automatic with the passing of the bill.
Senator L. Smith: I have an open-ended question for the panel. Are negotiations still taking place, or are negotiations completely off?
Mr. Aylward: Negotiations are still taking place. We are scheduled to go back to the bargaining table the week of June 14-15.
Ms. Daviau: We have several dates scheduled right through to September. There has been no delay in negotiations, although the week that they announced the budget implementation act, some dates were postponed because it caught union representatives by surprise.
Senator L. Smith: Some of the literature that we received is that there have been confirmations from Robyn Benson, National President of PSAC, that 60 per cent of employees do not currently have sufficient banked sick days to get them to long-term disability should they become seriously ill.
Ms. Daviau: That's not our figure. That's Minister Clement's information.
Senator L. Smith: Is this an issue where, with the changing demographics of your employees, there is a significant number of employees that don't have enough sick days to get them to long-term disability? If there is a significant number, does it beg the question that the government's actions are to put in a different system because it seems that you guys have a system, which you have had over time and you look at that as an acquired right. I understand that. I was in a union for nine years in the CFL, and in those days, we didn't have anything. I understand some of the challenges that you face.
Is the demographic shift so that a large percentage of people do not have enough sick days accumulated, therefore a solution like this could make sense? Can it be bargained through? Or are there two polar positions and no way of moving forward?
Ms. Daviau: The Treasury Board has taken a very firm position. We have taken a much less firm position. We are not closed to modernizing sick leave and addressing real gaps. But when we do the analysis of our own numbers, we maybe have 1 per cent to 2 per cent of our members that will find themselves in a position where they didn't have enough short-term leave to cover them to get to long-term disability. So that's 1 per cent to 2 per cent of my members. But the 60 per cent — let me tell you where that number comes from because I asked questions about that.
Let's say you have six members who are going to access long-term disability, keeping in mind that it is already a very small percentage of your members who might find themselves in need of long-term disability. Six of your members are in need of long-term disability. Of those six members, on average, two will have the full number of weeks that they need to get them to long-term disability. That's where "the 60 per cent that don't have it" comes from.
Of the 60 per cent who don't have full weeks, three out of the four will be within shooting range. In other words, they will have enough weeks if they add on leave or credits that they can advance; then they can make it to long-term disability on full pay. Only one out of the six might find himself or herself in a place where there will be some weeks before they get on long-term disability where they're unpaid or they have to go to Employment Insurance.
So in actuality, the 60 per cent is like 60 per cent of 5 per cent of our members. Of the 60 per cent, three quarters of them have actually enough to get them there, and only one quarter of them are finding themselves in that position. Certainly there has been a play on the numbers, in order to get you to that 60 per cent. But what it actually comes down to, in terms of our own membership and employees who are unable to make it to long-term disability with their banks, is 1 to 2 per cent of our members of public servants.
Senator L. Smith: Wouldn't that imply then that the vast majority of your members are in the older age demographic?
Ms. Daviau: They are not, in fact.
Senator L. Smith: You only cumulate sick days with seniority, over time. Is that not correct?
Ms. Daviau: No, that's not correct. Certainly for someone who is chronically ill at the beginning of their career or they are a parent of small children in daycare and they're bringing home new illnesses every week — you will find a higher rate of illness in those younger ranks, and they use it up. Why do we accumulate later in the career? Usually, that's when we need it most and so people start to think, "I need this insurance policy in case I become chronically ill." But it is also because you no longer have all of these other exposures to illness. Your kids aren't small anymore, you're in your workplace or you're at home, and so you're less likely to grow ill.
In our members' cases, they are so committed to their work that you couldn't even pay them enough to take the day off. They really are committed to getting their projects done.
No, I don't believe that this type of modernization is in order, but I think it's fair to say that some modernization could be achieved, and we are very open to achieving those changes to the current system in order to ensure that we're meeting today's realities.
Senator L. Smith: I'm just trying to understand because we read in the papers that there is an aging demographic in the public service and that over the next few years there will be, through attrition, retirements, et cetera, a major change. If I understand correctly, what you're saying is that people in the public service with five years of experience versus someone with 25 years of experience have the same degree of sick day protection as someone who is a longer- term employee?
Ms. Daviau: Yes, they all get the same number of days per year. Obviously, the longer you're there, the more opportunity you have to accumulate leave. I'm just saying that it's not a rule. It's not a rule that the older demographics have lots of leave and the younger demographics don't. The people who have lots of leave are the ones who are lucky enough to find that they didn't get ill throughout their career or that they weren't facing chronic illness or other issues. For certain, as people get into the latter years of their career, there tends to be more health risks to them. These are things that come with age. But like I say, I don't want to paint that all with one brush because we have to make sure that all of our members are properly cared for and that our young members are not complaining about their sick leave regime any more than our older members are.
Senator L. Smith: Is this an issue of sick leave? I'm trying to understand the issue. Is the issue sick leave, or is the issue a constitutional issue? Mr. Aylward, you were very adamant on this constitutional issue.
What needs to be solved to get a deal here? I'm just trying to get to the bottom to understand, just from an outsider's perspective, what the real issues are.
Mr. Aylward: The issue now is the Charter. The issue now is our right to free collective bargaining under the Charter of Rights and Freedoms, which basically, Division 20 strips away from us. Within Division 20 now they have given cabinet the unilateral right to implement and change our current collective agreements. That, as I said, is an affront to the Charter, for sure. The crux of the issue within Division 20 is that they've totally ignored the Charter. I'm going to ask Mr. McCarthy to address your earlier question, as well, please.
Mr. McCarthy: In terms of whether the government is operating in some sort of altruistic sense towards its employees when it puts forward its sick leave proposals, people do know what the alternative systems are out there. As a union for our more than 100,000 members, we conduct a very extensive bargaining input process. I can tell you, as somebody who brings in all this stuff and hundreds of bargaining proposals, that we didn't get one asking to switch over to a short-term disability process. So there isn't something percolating out there about some grand gap.
Debi raised also the issue of there being other safeguards in the system, such as advancement of credits and those kinds of things that are there. Frankly, in our process, we approach this all in good faith. We're looking at any employer proposals in terms of, as I said, improvement for the membership. Will this contribute to the health of our workplaces? Does this mean that the public that our members serve will get sick as the result of having somebody sneezing on them when they go to a passport office, for example? We look at that carefully. We are essentially looking at all of the employer's proposals in terms of whether people are more likely to go to work sick under their proposal. Is there an economic incentive in their proposal towards people going to work sick? We look at their proposal, especially when you look at things like you have a few days a year, I think they're up to six, and then you have a waiting period to exhaust of a week before you get on to STD. If you haven't used any credits that particular year, you're bridged to STD. If you happen to have the flu, you might go in to work so that the next time you have a communicable disease later on that year, and as someone with small children, that happens often, you do not end up having to choose between your paycheque and going to work sick. That's where we fundamentally look at each one of their proposals, but that's standard bargaining. The employer is going to propose concessions; we're going to propose improvements. What's happening with section 20 is that they're putting in a provision that it doesn't matter what we say at the table, essentially. You can imagine any contract negotiations if one of the parties has, at the end of talking to you, the power to decide the outcome anyway. You're not really in negotiations at that point.
Ms. Daviau: I want to add to that, because I don't want to leave you with the impression that sick leave isn't important to us. Of course it is. It's a fundamental issue at the bargaining table. But why we're here, and why we're prepared to take legal action, is because it's unconstitutional. If the playing field wasn't already challenging enough when bargaining with the government, which has all the power to change the laws as it requires, so it was already a very difficult requirement when they were respecting due process of collective bargaining, the changes proposed under C-59 and the changes that have already been implemented under Bill C-4 completely unlevel the playing field. To try to accomplish a free and fair collective agreement in that environment is impossible.
Why we're here in front of you is to say the Charter enshrined these rights because they felt it important to empower the workers to defend themselves, to stand up for themselves, to bargain collectively for the collective good. Certainly in the public sector we have been able to negotiate fairly decent terms and conditions of employment that we want to protect, but we have never had power at the bargaining table. The power has always been in our employers' hands. What we're asking for and what we're asking from this committee is to recognize that Bill C-59 actually renders it impossible for us to get to a free and fair collective agreement, and that's provided for under the Charter of Rights and Freedoms. Some of the things written into this bill in order to ensure that it doesn't have to pass the test of other things under the Charter of Rights and Freedoms simply highlight the fact that this government wants to be able to do whatever it wants and to run roughshod over not just process but law that's protected this bargaining process for as long as any of us can really remember.
This is a really fundamental issue that we may be discussing around sick leave, but it's not sick leave. This is about the constitutionally protected right to collectively bargain. Given that right and given our fair access to that process, we will be able to enter into the kinds of discussions or the kinds of challenges you're raising with us today. How do we actually fix, modernize and improve upon in a way that's also fair to taxpayers? That's the sort of discussions we have at the collective bargaining table. It's not the sort of things that normally get imposed by law.
[Translation]
Senator Bellemare: I just want to make sure I understood what Mr. Aylward said regarding the fact that the amount of $900 million set out in the budget is already used in the budget. You are also saying that you are still in negotiations. There is a contradiction here I do not understand. I don't know whether you can enlighten me.
[English]
Mr. Aylward: I would agree with you that it's a major contradiction on behalf of the President of the Treasury Board to tell the Minister of Finance that, yes, we will save $900 million in sick leave while we're still sitting at the bargaining table, hopeful that we can negotiate improvements around our workplaces and ensure that we have healthy workplaces. Yet, the President of Treasury Board has seen it fit to tell the Minister of Finance that you can actually put $900 million of savings right in your budget because that's what we're going to save. I would agree with you that it's a major contradiction.
Ms. Daviau: And inconsistent with the Charter of Rights and Freedoms, I might add.
The Chair: Each of you has raised section 2, the right to collective bargaining in the Charter of Rights and Freedoms. You also mentioned Bill C-4 two years ago, budget implementation. You indicated, Mr. Aylward, that you started a legal process. Was that to challenge this particular clause or to bring into the court process the particular clause in the Charter?
Mr. Aylward: No, we challenged Bill C-4 basically based on what was in Bill C-4 around our bargaining rights, around the Charter and that. In particular, what the Supreme Court has already said concerning bargaining in Bill 5 of the Saskatchewan Federation of Labour case that was brought before the Supreme Court, where the Supreme Court upheld bargaining as a Charter right.
The Chair: What's the outcome of that court challenge? Is it still ongoing?
Mr. Aylward: It's ongoing.
Ms. Daviau: It's still in its early stages. Just to answer your question, the same section of the Charter, different arguments entirely.
The Chair: I understand, but you can get some direction with respect to whether the argument you are making is a strong one here from other court cases and other fact situations.
Ms. Daviau: That Saskatchewan Federation of Labour case a couple of months ago was heard by the Supreme Court of Canada and set some very strong precedents around section 2(d) of the Charter, and that's the one that really does provide for some precedents going forward on this.
The Chair: That's helpful.
Senator Mockler: Just to clarity, I have two or three questions. Ms. Daviau, you said we agree or you agree on what we call modernization. Can you share with the committee what you mean by you agree on the side of modernization in the process?
Ms. Daviau: For example, as of late, a number of changes have been made to acts that affect us. Pension would be a current example where there was major legislation around the change in retirement date as well as the contribution rates of employees. We didn't challenge that. We're not in court fighting it, and we weren't in front of Senate or House of Commons committees about it. Why? Because it's recognized that people live longer, that the costs of these plans are maybe getting longer and that there are all kinds of new medical advances that are extending people's lives. In many cases, there is a complete openness to looking at what has changed over the years and what therefore needs to be changed within collective agreements or other policies to enable the new environment.
In the case of sick leave, for example, I mentioned 1 to 2 per cent of our members, which is still enough members for me to really care about, are not in a position to access sick leave, or long-term disability, I mean, on full pay. Certainly we are very open to looking at improvements to the system, even compromises that represent a scenario that more fully represents our entire membership.
What we don't believe is that the proposed solution that the Treasury Board has on the table which is being enabled, essentially, anytime anyplace legislation in the budget implementation act. What we're concerned with is that that is not the solution that modernizes the public service sick leave regime. It's instead a solution that is ideologically driven and that puts money into the coffers of private industry.
We've always been able to bargain effectively to those modernized settlements to reach compromises and different agreements. Never before have we faced legislation like this that literally puts a gun to our head with a presupposed solution and then asks us to try to get to a meaningful agreement at the table.
You asked if we're still there bargaining meaningfully even though they did this. Yes, because we still really want to get to a free and fair collective agreement. We hope in our hearts that we will be able to do that despite the barriers created specifically through Bill C-59. I hope this committee will sound in strongly on the implementation act in order to strike what is the most offensive in this bill.
Senator Mockler: As the chair asked the question about section 4, and it's being challenged, and you gave some examples in Saskatchewan, I believe, will you challenge Division 20?
Mr. Aylward: Absolutely, and it was Bill C-4 that we challenged. Yes, we will challenge every avenue we have. We will challenge Division 20. As I said very plainly, we see it as a direct affront to the Charter and our right to free collective bargaining.
Senator Mockler: Ms. Daviau, you say on page 2 of your presentation that it is unfairly stacking the deck at the bargaining table. That's unfairly stacking the deck against a fair collective bargaining process.
Is it true that your unions publicly advertise that you have signed a solidarity pledge to make no concessions at the bargaining table?
Ms. Daviau: We have signed a solidarity pact on how we will work together. The contents of that solidarity pact don't speak to making no concessions at the bargaining table, and it's a private pact we have amongst ourselves.
That being said, the position we have taken publicly and with the Treasury Board is that the solution that they have on the table, the short-term disability plan, represents a massive concession for our members and we believe also a bad situation for the federal government and the public. So we don't accept that solution, that's to be sure.
We want to sit down with government to find real solutions to real issues, but we haven't yet had that opportunity.
Senator Mockler: You're informing the committee that you have signed a solidarity pledge. Can you share with us the contents of that pledge?
Ms. Daviau: We have agreed to work together. Quite simply, the government has approached us with one omnipotent package it plans to impose on every union — a wage package, sick leave and a number of other common elements through our collective agreements. As a result, we felt that in order to protect ourselves, in order to ensure that one union isn't taking actions that may actually impact negatively on another union, we signed a pact to ensure that we were collaborating, sharing, discussing types of common approaches to the common issues we're facing, both in bargaining and beyond bargaining, as a group of federal public sector unions.
Our pact speaks to our gathering as a group of unions and how we can realize our synergy together more effectively by working in that way.
Mr. Aylward: There are 17 bargaining agents that represent federal public sector workers. Often before in rounds of bargaining, where one bargaining agent gives something up in a concession, it often became the pattern. It was like pattern bargaining.
To better prepare ourselves for this particular round of bargaining, that was the purpose of signing this, so that 17 bargaining agents would actually talk to each other, all during this round of bargaining so that the whole divide-and- conquer thing didn't happen.
Ms. Daviau: Those are unions representing anything from ship maintenance workers on the dockyards to medical doctors at Health Canada and DND. There is a wide variety of occupational groups.
As I'm sure the alliance feels, because they also represent a diverse group of people, sometimes it's hard to even organize ourselves inside because of the many differences. So the pact really spoke to how we can organize ourselves with each other, given all of the massive differences between our occupational groups.
The Chair: Can we clarify the 17 bargaining units within the alliance?
Mr. Aylward: No, there are 17 bargaining agents. The PSAC is a bargaining agent. The Professional Institute is a bargaining agent. There are 17 bargaining agents.
Ms. Daviau: Some of us have one single bargaining table, and some of us have many. A stat that you might find useful, because there is a statistic out there, is that we've been at the table for 200 days. That was Minister Clement's stat. There are actually 27 different bargaining tables at the federal public sector, so if you divide the 200 by 27, it's less than 10 days at each bargaining table.
Mr. Aylward: To add, the Public Service Alliance represents the vast majority of the workers. At just one bargaining unit we represent 90,000 employees.
We have five bargaining tables with the PSAC. As the one bargaining agent, we have five bargaining tables with Treasury Board, and those five tables have met five different times. When we meet, we're scheduled from Tuesday to Friday. We often don't see Treasury Board representatives for more than a couple of hours during that time.
The Chair: Are "tables" and "units" used interchangeably?
Mr. Aylward: Yes, exactly.
Senator Mockler: I want to clear the air. There is some confusion. You say that you have a solidarity pledge to make no concessions at the bargaining table.
Ms. Daviau: You said that.
Senator Mockler: I said that. Did you not, by the fact that you have signed a solidarity pledge, put in jeopardy fair negotiation with the employer?
Ms. Daviau: Why would that be? The Treasury Board negotiators are all collaborating with each other to bring common packages at each of the 27 tables. We're really just doing the same thing. We're collaborating at each of these 27 tables together to ensure that our response to the same package is the same.
Senator Mockler: Thank you.
Ms. Daviau: It's defensive, if you will.
Senator Wallace: Ms. Daviau, I thought I heard you say earlier that your objection is really not about sick leave or disability programs; it's really the fact that Division 20 of Bill C-59 would impose a condition on your collective bargaining process, and that is really at the heart of it. As you said, you're prepared to challenge that in court.
Is that correct? We're not here talking about the substance of whether the proposed changes would improve or worsen the circumstances involving sick leave and disability. That's not the issue. It's simply the difficulty you have with imposing this on the collective bargaining process; is that correct?
Ms. Daviau: Correct. As I said earlier, don't get me wrong, we have a problem with the sick leave proposal, and that's something that we're fully prepared to sit down at the bargaining table and work out seriously with the employer through a fair process. That's not what we're here for. We are here because never in the history of 50 or 60 years of bargaining have we ever faced a situation where the government felt that it could not go through the process to get to the result, but instead needed to predetermine the result by changing the law. This is what makes this such an exceptional circumstance, not what we're bargaining over.
Senator Wallace: I can understand from your perspective that it's not an insignificant issue. I fully appreciate that.
That's something to be determined.
When you come down to the substance of it, the minister's position would be that the bill is a substantial improvement regarding sick leave and disability, so the employees would benefit. That's the view of the minister.
Ms. Daviau: If that were true, the minister could bring it to the bargaining table and negotiate it with the unions that represent people. Our members get to vote on collective agreements. It's not only that. The employer now has the right, since the modernization of the Public Service Labour Relations Act or Bill C-4, to impose a vote on our members. So at any time the employer could say, "You people don't know what your members want. We know what your members want. We heard from our employees. We know what they want, so we will go to your members and ask them if they will take what we have on the table." They have the right to do that at any time.
Senator Wallace: I understand that.
Ms. Daviau: To say that that's the auspice behind needing to bring in legislation to force the issue, as opposed to dealing with it through the systems that are already in place for collective bargaining — bargaining at the table, conciliation, the right to get a final offer vote from our members, our right to access strike or job action, et cetera — all of those things are enshrined in law. There is no reason why it would need to be wiped out in order to enable the government to do what it says it's trying to do, which is to modernize sick leave to the benefit of public service employees.
Senator Wallace: I understand your concern about process. You made that abundantly clear. But would you not agree that in substance, the actual substantive changes proposed to sick leave and disability programs may well be an improvement over what exists today?
Ms. Daviau: No, I don't agree with that at all.
Senator Wallace: I thought you weren't taking a position on that.
Ms. Daviau: Not to you guys. If you want to be honest and you're asking me the question, no I do not believe that the solution the government has on the bargaining tables currently — and the one they threaten to impose though the budget implementation act — is the right solution for our members, for public services or for Canadians.
Mr. Aylward: When you look at what they're proposing, it is basically to go to work sick or stay home and lose money out of your pocket. We don't see that as an improvement to our sick leave at all.
Senator Wallace: I understand that, and the ministers see it somewhat differently.
Ms. Daviau: We're accustomed to that.
The Chair: To the Public Service Alliance of Canada and the Professional Institute of the Public Service of Canada, we thank each of you. You explained the concern that you have and the secondary concern, and that's very helpful to us. Thank you for taking the time to be here.
Ms. Daviau: We appreciate you having us.
The Chair: This meeting will be concluded shortly, but I wanted to remind honourable senators that we will be meeting this evening and we're dealing with Part 3, Division 18, ending the Long-gun Registry Act. We have the Information Commissioner as a witness for half an hour or so, and then we have the RCMP to explain their position.
I expect that will be all of the outside witnesses for Bill C-59.
Tomorrow we will have the various chairs of the other committees that have parts referred to them, and they'll come and explain those to us. That should put our arms around Bill C-59, and then we'll try to get the report done on that and wait for the bill to arrive. That is all for this afternoon.
(The committee adjourned.)