Skip to content
LCJC - Standing Committee

Legal and Constitutional Affairs


Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue No. 20 - Evidence - February 2, 2017

OTTAWA, Thursday, February 2, 2017

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, met this day at 10:31 a.m. to give clause-by-clause consideration to the bill.

Senator Bob Runciman (Chair) in the chair.


The Chair: Good morning and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs. Today we continue our consideration of Bill C-4, an Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act.

Joining us this morning are John Mortimer, President, Canada LabourWatch Association; Derrick Hynes, Executive Director, FETCO Inc.; and joining us by video conference from Vancouver is Charles Lammam, Director, Fiscal Studies, Fraser Institute. Mr. Lammam can only be with us for one hour, so keep that in mind. With respect to questions, the other witnesses can appear for a more extended period of time. We're hoping that Aaron Wudrick will be able to join us, as well. He's from the Canadian Taxpayers Federation.

We will begin. Mr. Mortimer, if you have an opening statement, please proceed.

John Mortimer, President, Canada LabourWatch Association: Honourable senators, please look at Appendix A of our submission for a copy of a current labourer webpage that has this to say about union cards:

Don't sign anything! You do not have to sign anything. Don't be tricked into signing something "to get more information'' . . . . "It's just a sneaky way to get a member to sign a card signed''. . . .

The horse's mouth speaketh the truth. Union organizers lie. Employees might be told the card is just to get more information or just to get a vote, but in card check jurisdictions, unionization is the goal and the result of this trickery.

The Minister of Labour, union leaders, lawyers, academics and labour boards point to the low number of rulings about such union tactics. The four most recent relevant reasons are as follows. For decades labour boards have ruled that card signing tactics of unions are not the employer's business. In 2005, the Canada board stated:

Any disquiet about undue influence or coercion into signing. . .should be brought to the Board's attention by the employees themselves.

Unions have plenty of talented professionals and outside labour lawyers funded by their $4 billion to $5 billion, subsidized by the taxpayer, to challenge employers and competing unions during raids. With labour boards telling employers to sit down and shut up, it is simply not credible to say that employees have any practical ability to file charges against unions, miss their work and their income from work, and show up at a labour board and litigate union card signing tactics, let alone afford a lawyer to show up instead.

I repeat: No labour board takes allegedly employee signed union cards and shows it to the signer and validates (a) that they signed, (b) that they signed on the date that is on the card, and (c) if they claim they signed it, what were the circumstances and basis under which they sign it?

No labour board undertakes a proper review that every card is a legitimate, unforged, properly dated signature of the worker that the union claims it is.

Sadly labour board rulings actually allow a range of lies to unsuspecting workers. One board ruled that a fraud on an employee is not a fraud on the labour board and on the legislation. Another board ruled too bad, so sad when a union used cards that employees had expressly asked to have back, but the union had ignored the requests to do so.

Then there is card fraud. We got a small peek at the underbelly of this union tactic in British Columbia via the Purdy case, where the union got caught forging employee's signatures on to cards. Only years later did it come to the light of day at the labour board.

Is there a political party in this country that has not experienced real problems with card based membership drives ahead of nomination meetings? Those political party meetings include what? They include secret ballet votes. Do any political parties call a membership card in that party a vote? Not one. All unions run their internal union affairs on secret ballot votes. They do not run their internal elections on cards. This is telling and should be of powerful significance to this committee and to all senators.

In 1977, Nova Scotia's workers became the first Canadians to get legislated access to a bulwark of workplace democracy: a statutorily guaranteed secret ballot vote that this bill steals back from federally regulated Canadians.

Appendix C has a table summarizing the provisions of 11 private sector labour codes. Every year, in eight vote jurisdictions in Canada, in government run elections, workers have still been unionized. Even in Nova Scotia, after 37 years of workplace democracy —news flash — unions have not disappeared and labour relations have not been set back to the age of The Flintstones when compared to non-vote jurisdictions in Canada.

Voting is criticized for reducing the rate of new unionizations. It does have this effect because it actually reflects what informed employees making a government protected private choice actually want. Getting unionized by trickery that workers have no real means of litigating and proving will be the outcome again if federally done through Bill C-4 and if it is not amended or pulled back by the government.

Stealing the vote from the weakest party, Canadian workers, and giving card check back to Canada's executive suite union leaders is simply wrong and undemocratic.

The Chair: We will have to move on. Mr. Hynes has the floor now. We asked you all to keep it to five minutes.

Derrick Hynes, Executive Director, FETCO Inc.: Thank you, senators, for this opportunity to present on Bill C-4 on behalf of FETCO, which stands for Federally Regulated Employers - Transportation and Communications. We are an employer association of federally regulated firms in the transportation and communication sectors. We have existed as an employer association for over 30 years. Our members employ nearly 500,000 Canadian workers, or more than half of all the workers in the federal-private sector. FETCO members are household names: Air Canada, Bell, Canada Post, CN, CP, and FedEx Canada, to name just a few.

FETCO has a long and successful track record of tripartite engagement in federal labour relations under the Canada Labour Code. You heard from the minister and from Hassan Yussuff, President of the CLC yesterday that the tripartite model includes Employment and Social Development Canada, ESDC, as the government voice; the Canadian Labour Congress as the voice of labour; and FETCO as the voice of employers.

My focus today will be on portions of Bill C-4 that reflect changes introduced in Bill C-525, those dealing with union certification and decertification rules. If I could leave but two key messages with you today, these are it: First, FETCO remains concerned about the manner in which Bill C-525 was enacted and, second, FETCO supports the basic principles proposed in Bill C-525.

On the first point, FETCO has consistently argued that the process used to enact Bill C-525 was inappropriate. It brought in a revised certification and decertification process for all federally regulated organizations by the use of a private member's bill. We talked about this yesterday, but I want to repeat some of these points.

We don't view private members' bills as being in any way undemocratic, but we do feel they should not be used for changes to the Canada Labour Code. For decades, a meaningful tripartite consultative mechanism has existed for such changes, where the three key stakeholders of government, labour and business take a deliberate approach to changes under the code and its associated regulations by consulting extensively ahead of time.

Under a government bill we tend to see a greater degree of rigour in the process. Committees tend to have access to research and analysis and can tap into key internal resources such as the expertise that exists within government departments.

The reality is that a private member's bill does not receive the same level of scrutiny as can be achieved through a meaningful consultation with all stakeholders under a government-wide approach. We have a tripartite system that works. Our respectful suggestion is that we continue to use it.

This brings me to my second point. While we did not appreciate the way in which Bill C-525 was introduced, FETCO ultimately supported the basic principles in the bill and remains supportive of these changes within the federal collective bargaining environment. Here is what we said to this very committee in December of 2014:

FETCO members prefer a secret ballot vote to a card-check system for the purpose of determining if a union is to become a certified bargaining agent for employees. A secret ballot vote is the essence of a true democratic choice and is entirely consistent with Canadian democratic principles. It allows each and every employee to express their true wishes without undue influence or disclosure of how they cast their ballot. This is the mechanism that is used for the electoral process in Canada, and it is the fairest process.

The current version of Bill C-525 requires that in order for a union to be certified, the majority of employees who cast ballots must vote in favour of being represented by the union. Furthermore, this certification process by means of a secret ballot vote based on the majority of votes cast is the standard that currently exists in the labour relations legislation in the provinces of Alberta, British Columbia, Nova Scotia, Ontario and Saskatchewan. It is a widely accepted method of determining certification in Canada. It is not new.

The provisions of Bill C-525 regarding the threshold number of employees required before the Canada Industrial Relations Board will order a certification vote or a decertification vote is 40 per cent. This is appropriate.

These provisions are equally fair and are consistent with rules for establishing certification or decertification vote thresholds in the various provincial jurisdictions.

Bill C-525 contains three key principles that we continue to support. First, it ensured that a secret vote would be required for all union certification and decertification efforts. The secret vote is fundamental in our democratic society. We cannot think of another approach that is more open and fair to employees when making these important choices. Second, it ensured that unionization could not be achieved via solely the use of signed union cards. Third, it set a threshold of 40 per cent, which is consistent across most provincial jurisdictions.

Thank you for the opportunity to speak.

Charles Lammam, Director, Fiscal Studies, Fraser Institute: Thank you, Mr. Chairman and committee members, for the opportunity to participate in these important discussions about Bill C-4. I apologize for having to leave the meeting early.

I am the director of fiscal studies at the Fraser Institute. We are a non-partisan economic research and education organization. My comments today reflect my own opinions and observations about the research that we have conducted and I do not speak on behalf of anyone else at the Fraser Institute.

In my view labour relations laws should aim to balance the interests of workers, their collective representatives and employers. Unfortunately, our research has found that labour relation laws in Canada, particularly at the federal level, are generally not balanced and favour a union organizations at the expense of workers. Instead of empowering workers to hold their union representatives accountable, Bill C-4 will make the process of unionization less democratic and will weaken the financial accountability of unions.

Under existing legislation, which was brought into force by Bill C-525, workers in federally regulated industries are guaranteed the opportunity to vote anonymously through a secret ballot when deciding whether to approve a union as a representative. Seven of ten provinces have a similar role for provincially regulated industries.

Bill C-4 would move federal legislation away from what has increasingly become the norm in modern Canadian labour relations laws by returning to the old card-check system, a process that allows unions to be certified without holding a secret ballot vote if a sufficient number of workers sign up as union members.

Forgoing a secret ballot vote is problematic because automatic union certification may not reflect the true desire of a majority of voting workers. Without the anonymity of a secret ballot, union organizers may pressure workers into supporting union certification. Any dissension or disagreement can become confrontational, especially when unionization is controversial. Some workers may be uncomfortable publicly voicing their opinion for or against unionization. A mandatory secret ballot certification vote provides the same basic protection of anonymity that all Canadians enjoy when electing their politicians. Allowing union certification without a secret ballot vote runs contrary to the goal of empowering workers.

Bill C-4 would also make it more difficult for dues paying workers to hold unions accountable once a union is certified. It is important for a labour union to be accountable and responsive to the demands of its members and dues paying workers because the primary purpose of a union is to represent the interests of unionized workers, specifically in negotiations and disputes with an employer.

The financial disclosure rules currently on the books, although not enforced by the federal government, require unions to publicly disclose key financial information such as spending, revenues and their financial position. This disclosure, if enforced, would make it easier for unionized workers and interested third parties to gauge the financial health and operations of the union.

Like secret ballot voting for certification, the financial disclosure roles espoused in Bill C-377 promote principles of anonymity, democracy and accountability. Research shows that increasing financial transparency contributes to improved governance and reduced corruption.

Critically, current financial disclosure rules require unions to report details on how much money and time are spent on activities unrelated to worker representation such as activities related to political and social causes. This is particularly important because unionized workers in Canada can be forced to pay full union dues as a condition of employment even if they disagree with the causes the union supports.

Requiring unions to disclose how much money is spent at least allows workers to more easily and anonymously learn how much their union spends on such causes. This is a critical reason why increased financial disclosure is needed in Canada.

In closing, I note that research shows balanced and unbiased labour relations laws can help create the conditions for a jurisdiction's improved economic performance including increased investment in job growth. Part of a balanced set of labour relation laws is empowering workers to democratically certify unions and hold unions accountable once certified. Bill C-4, works against these objectives.

The Chair: Welcome to the committee, Mr. Wudrick. The floor is yours.

Aaron Wudrick, Federal Director, Canadian Taxpayers Federation: My name is Aaron Wudrick. I am the federal director of the Canadian Taxpayers Federation and I want to thank the committee for the invitation this morning.

For those of you not familiar with our organization, the Canadian Taxpayers Federation is a non-profit, non- partisan advocacy group. We are supported by about 90,000 Canadians across the country entirely by non-tax deductible donations, which is something we're proud of. Our advocacy focuses on three areas: lower taxes, less waste and accountable government.

In that spirit, my remarks will be directed at the provisions of a bill that relate to the rescinding of certain sections of the Income Tax Act as they apply to unions.

Very simply put, the CTF's view is that the sections of the Income Tax Act that will be rescinded by Bill C-4 represent a step backward in terms of promoting transparency and accountability with respect to taxpayer dollars.

Obviously there is an ongoing and probably never-ending debate about the impact and desirability of these measures, which involved the level of disclosure required of unions. In Canada, unions collect approximately $4 billion annually in members' dues and can spend them as they see fit with no mandatory public reporting. What makes this an issue for the broader taxpaying public is the fact that unions enjoy a range of tax benefits and special tax treatment that ultimately function as a public subsidy for their activities. Specifically union dues are tax deductible as is strike pay. These tax breaks have been estimated to have a net worth of about $400 million a year or more.

Charities receive similar but not as extensive special treatment. They are accordingly required to file public disclosure to maintain their charitable status. To us, this in fact is the reasoning behind calls for public reporting of union finances. Where any entity receives the benefit of a public subsidy, the expectation of transparency from that entity is heightened as compared to those who do not receive a similar benefit.

I want to be absolutely clear that the CTF's position should not be interpreted as opposing the political or social engagement of unions. Unions are legitimate stakeholders and should be able to engage in political activities. Where our objection comes is where unions are subsidized by the taxpayer to do so. Indeed, we've even taken up the position that political parties themselves should not receive or at least receive a much less generous taxpayer subsidy. Given, however, that they are subsidized, we believe that benefit should, as I said, attract a higher level of transparency than without the subsidy. This is also analogous to our position on the transfer of public dollars to private businesses, which we call corporate welfare.

We oppose it entirely, but if it is going to happen, surely the price for receiving that subsidy should be transparency and accountability to the taxpayers who are footing the bill. I will leave it there and happily take questions.


Senator Bellemare: My question is for Mr. Hynes. You condemned the process through which Bill C-525 was enacted because it doesn't really comply with the tripartite principles we're used to in Canada, in particular at the federal level, to make the necessary changes to the Labour Code rules or to ensure rigour. We know that Bill C-525 contains errors that remove power from the Labour Relations Board.

My question is the following. I'm providing a hypothetical choice of A or B, given the principle that we can't have our cake and eat it too. According to option A, you keep Bill C-525 but jeopardize the current tripartite system for labour relations when it comes to the future changes to the Labour Code. In particular, by enacting Bill C-525, you justify the use of private member's bills to improve or compel anti-scab legislation.

According to option B, you reject Bill C-525 but are assured that the current tripartite system to make changes to the Labour Code remains. This enables you to possibly negotiate the parameters of a new certification system that maintains the way in which the secret vote is held and that is balanced, so that both parties have the chance to state their position.

Which of these two options would you choose and which is better for Canadian society and for the stability of labour relations in the long term?


Mr. Hynes: Not being a politician, I have learned from watching them on television that answering hypotheticals is usually not where somebody wants to go. I'm going try to be smart enough and not walk down the answering a hypothetical question road. What I will say is: You do ask a very good question.

Bill C-525 presented a real conundrum for us as an employer association because we have a rich history of tripartite collaboration within the federal sector. This is not the stuff that makes the news, but the reality is that on 90 to 95 per cent of the issues frankly labour and management find a way of getting along.

We meet on issues. We sit around the table. We work our way through them. I could give you dozens and dozens of examples where FETCO and the Canadian Labour Congress have met with government and have found our way through these sorts of situations.

What hits the papers is the 5 per cent of the margins where we argue. There are differences of perspective on principle where I think we diverge. We diverge on the issue of the secret ballot. There is no hiding that.

I can't answer your hypothetical. However, Bill C-525 did not respect that process. We wish that it had. One could also argue that Bill C-4 didn't either because Bill C-4 was an election campaign promise. We didn't have a pre- consultation or a pre-discussion as we normally do when changes are introduced to the code. We didn't do that for Bill C-4.

Bill C-4 has been presented to us as a take it or leave it scenario, which is equally unsettling. It would be better in all of these situations if we had an informed, upfront conversation with all the parties around the table and found an agreement on the key issues before we proceeded.

The Chair: For members and witnesses as well, what I'm trying to do with the significant number of members in this committee is look at roughly four minutes: two minutes for the question and a maximum two minutes for the responses. Hopefully we can get around the table following those guidelines. I remind members that Mr. Lammam has to leave at 11:30.

Senator Tannas: Mr. Hynes, would the tripartite system that has been in place for a long time ever have yielded a secret ballot vote, in your view? Is this a position that you have advanced before? What is the mechanism to get a result in the tripartite system that would bring about a change as significant and important as this one?

Mr. Hynes: It is an excellent question. I don't think it would be easy. It could come as part of a broader conversation related to the code. We have gone through over the years a number of substantial reviews of the Canada Labour Code. Through those negotiations obviously there is a give and take by all the parties around the table. There could be an opportunity to have a conversation about secret ballot versus card check if we had a more sort of expanded dialogue. Again, it would have to be set up as a conversation about that.

To the previous question, a private member's bill and sort of landing it on us was challenging for all the parties. If we could, as you suggest, have had that sort of conversation earlier then perhaps we could find a way of meeting in the middle on this issue.

A lot of dialogue lately has been around harmonization across the jurisdictions. I believe the same logic could apply to the code. We see some variation within the provinces and the federal sector on issues like this one. The point we're making is that Bill C-525 did bring us closer to alignment with the other jurisdictions and closer to that harmonized world. I'm hopeful, yes, but I concede that these are tough issues. The other side would have a different opinion, as presented yesterday by Mr. Yussuff.

Senator Jaffer: Mr. Hynes, my colleague Senator Baker asked the minister whether there was consultation and we didn't get an answer. From what I understand, on Bill C-4 there was no consultation with you. Is that correct?

Mr. Hynes: I would say there was no formal consultation. I don't want to speak for the minister, but I believe what she was saying in response was that the government didn't hide its position on issues in campaigning for the election. The government was very clear that their intention was to repeal Bill C-377 and Bill C-525. That was not a surprise. It was one of the first pieces of legislation that hit the floor of the House of Commons when the new government started. No, there was no formal consultation under the tripartite model that we have used on many other occasions on other issues.

Senator Jaffer: The minister brought up the issue of the tripartite model. I don't know who but someone among our group asked, if there were issues with Bill C-4, how they would resolve them. I am paraphrasing, but the response was that she would do a tripartite consultation. You mentioned tripartite as well.

To understand these processes better, in the past has the tripartite process been an effective process? Could you tell us how the tripartite process works?

Mr. Hynes: It has been very effective. I have files and files in my office of issues that we have worked through. To give you a very current example, as you know, the Prime Minister has made a commitment to addressing issues of sexual harassment in the workplace. The government regulator is trying to find its way through how to better manage this so that those who bring complaints forward have quicker access to justice and the processes are better improved.

We started a conversation last summer on this where the government brought the parties together, labour and management. We sat around a table and the regulators put some options on the table that we might consider. We started that process. What was really interesting about that initial conversation was both labour and management really shared the same perspective on the way forward on that issue. We got real traction and we think we moved that issue along quite positively.

There are dozens and dozens of those kinds of examples. They don't hit the news. They are very productive. It works in 90 to 95 per cent of issues, but it's at the margins on these issues where we see the public debate.

Senator Batters: Mr. Mortimer, yesterday in questioning Minister Hajdu, Senator Bellemare referred to your LabourWatch organization. She stated that your group had made significant lobbying investments to promote and strongly encourage the passage of Bill C-377 and Bill C-525.

Yet I note, when you were in front of this committee in December 2014, Senator Moore asked you, "What's the budget of your organization?'' You replied, "We operate on between $50,000 and $90,000 a year to support us.'' Then when Senator Moore asked "how many staff do you have at LabourWatch,'' you replied, "You're looking at him.''

It is not exactly a massive lobbying organization when dealing with the Government of Canada, correct?

Mr. Mortimer: Correct. We have never hired a lobbyist, never paid a lobbying fee and never run an advertisement. In terms of where our board of directors is at, we do not lobby. I have served as president of this organization on a part-time basis for 16 years. I have my own company. That is how I make my living and support my family. Emphatically, we are not lobbyists. The only thing we do is respond to committee requests to appear. You can find no lobbying brief filed in our name with any parliament anywhere in the country in 16 years.

Senator Batters: I imagine that would be a considerable contrast to the lobbying budgets of the union movement in Canada. I want to get to my second question, but if you have brief information on that I would appreciate hearing it.

If I recall correctly, just a couple of days before Christmas 2015, the new federal government announced that despite Bill C-377 having been passed by Parliament six months earlier the union transparency requirements, which had a deadline of only days away at that point, would not be followed by the federal government.

The Trudeau government did this without this bill being passed by Parliament. I don't even think it had been introduced yet at that particular point. Could provide us with information about that series of events?

Mr. Mortimer: As a Canadian, as a taxpayer I find it breathtaking that Canada's union leaders were told they didn't need to comply with the laws of Canada. I believe it's a matter of record that leaders of First Nations have also been told they don't have to comply with legislation passed by the Parliament either. It is quite staggering. I am very concerned as a Canadian, based on the behaviour of the government.

I would like to make one small comment with respect to the tripartite process. This is a survey research on what currently unionized Canadians think about secret ballot votes. These are the currently unionized dues-paying Canadians that think there should be secret ballot votes. The red is the ones who don't.

The tripartite process is union leaders, corporate leaders and government. It does not speak for workers. It does not speak for unionized Canadians. They no longer publish the research of the Canadian Labour Congress because it shows the divergences they get in their own research from the people who have to pay for it in their union dues. In the actions that people like Mr. Yussuff take before committees like this, which are diametrically opposed to what they want, no one speaks for them. The tripartite process is, to that respect, a sham.

Senator Batters: And you said that was of union members.

Mr. Mortimer: This is of unionized, dues-paying, working Canadians, and this is very consistent research done in 2003, 2008, 2011 and 2013.

Senator Batters: Could you provide us with a copy of that?

Mr. Mortimer: Certainly.

Senator Pratte: Just for context, I remind senators that the unionization rate in Canada has been going down for the last 40 years, from 38 per cent to below 30 per cent.

For personal context, in my career as an editorial writer I've not been known as a friend of the unions, and I was sponsored to come to the Senate by the Quebec Employers Council.

I read your testimony, Mr. Mortimer, in front of the House of Commons committee and I heard you again today. I must say there can be a very good argument made in favour of the secret ballot, but each time you accuse the union organizers of lying, of using systematic trickery and of stealing the vote, you lose credibility in my mind.

Do you believe that union organizers systematically lie to get their unions accredited? Do you believe that they systematically use trickery? Don't you think most union organizers are in good faith? Whether or not you believe that their way, the card system or the secret ballot, is the best system, don't you believe they're in good faith?

Mr. Mortimer: I believe there are instances again, again and again in card-check jurisdictions. The labourers unions have correctly stated this. They still have that webpage; they've had it for years, advising their members of the trickery they face from competing unions that try to raid them.

What a vote does is it takes away the temptation to do that. Labour boards have been faced with the adjudication that employees have at times come before them and raised on rare instances that they were told: "You will get a vote.'' What they basically say back is: "Buyer beware.''

I would like to take away the temptation. I have no research. Nor have I ever maintained that all organizers do that or most organizers do that. What I've tried to say, based on what I've heard from people and what I've seen in the cases and seen in the evidence, is that it does happen. What card check does is that it cleans it up and takes away the temptation. What is good for internal union votes should be good for certification.

Senator Pratte: There's also research that shows that a secret ballot brings intimidation by employers which you represent. You don't represent employees; you represent employers.

Mr. Mortimer: As the former head of human resources of Future Shop for North America and Wendy's Restaurants of Canada, I can talk about the legal advice we had, the way we conducted ourselves and what we said. Are there some employers who do things they should not do? Yes, but the union is there to file the unfair labour practices, and they do.

The problem, senator, is that there is no one to effectively file those unfair labour practices on behalf of the person who had 20 home visits in Jonquière, Quebec, in one weekend; the person who goes to the break room every shift and is faced with it; or the co-pilot who sits for four hours flying across the country while the first officer goes at them for four hours with: "You will support me when we get to the hotel, when we're going to be faced with ALPA's card signing people, and I expect you to sign that card.''

There is a profile of human beings who, in the face of relentless persistence to sign a card, will simply sign it to end it. That is not the free choice of the worker, and only a secret ballot protects them from that kind of conduct.

Senator Pratte: CIRB, the Canada Industrial Relations Board, says they're able to check that and to ask people whether they were submitted to pressure.

Mr. Mortimer: The CIRB has stated in the TD Canada Trust case that the refusal to leave a woman's home was a misunderstood organizing tactic of unions. The Federal Court of Appeal said with respect to Carina Bouffard that because she wasn't actually the subject of violence from the three steelworker organizers who refused to leave her home on a December night, it wasn't an inappropriate tactic to refuse to leave her home.


Senator Dagenais: Let me digress for a moment. Those who think there's no intimidation when union raids occur should listen to the audio recordings of the Charbonneau commission hearings.

Mr. Mortimer, I want to go back to an issue that arose in the discussion. We talked about the signature of cards. On some occasions, union members signed cards fraudulently. What consequences did these people face for signing cards fraudulently? Do you know?


Mr. Mortimer: The only instance I am aware of is that when it has come up years later the labour board has thrown the certificate out. The problem is that if cards are fraudulently signed, who actually is going to find that out? In the Purdy case, the union tried to get the people who had exercised their legal right to cross a picket line terminated. The union threw them out of membership, only to find out there were no cards that the employees had signed. The union privately admitted they had fraudulently signed the cards. They were trying to get these people terminated from their jobs because they had crossed a picket line, but they weren't union members; they were unionized workers.

We're the only country left on earth where you can lose your job because you're not a union member. No other country allows that. Every country protects the jobs of workers if they lose their union membership, except Canada.

Senator Omidvar: I must admit that your evidence speaks to me much more strongly than the language around trickery and fraud. We try to make our decisions based on some balanced review of opinions. I want you to show that research again and tell me what was the sample size.

Mr. Mortimer: It was 1,000 working Canadians. The research was done by Léger on two occasions and by Nanos on two occasions.

Senator Omidvar: What is the total size of people in Canada who are union members?

Mr. Mortimer: There are roughly 4.1 million unionized Canadians. Union density in the private sector is approximately 16 per cent in Canada. There are today more unionized federal, provincial and municipal government workers than there are private sector workers. It has actually shifted now.

Senator Omidvar: My question is for the Canadian Taxpayers Federation. I have worked in charities most of my life. I find the comparison of unions to charities slightly convenient. Charities are required to disclose every year the source of their donations and union members get the source of their donations, but charities are not required to lay out in detail what was spent and how it was spent it for amounts over $5,000.

I also think charities are inherently different from unions. Unions provide services to people who are members. If you take a line with your argument, universities receive charitable deductions, as do churches and service clubs, et cetera. Where does this end, or is this sort of a witch-hunt of unions in this case?

Mr. Wudrick: You make a fair point. To us, the trigger for the higher threshold is, as I say, where there is tax dollars involved.

The reason unions are reluctant to disclose some of this information is that they argue it would perhaps be commercially sensitive, for example. That's one point they make.

In their view there's a tension between two principles here: one is privacy and the other is transparency. Organizations feel very strongly about one over the other. Often the discussion comes back to our organization. If we do not release the names of our donors people say, "How can you ask for transparency of others if you won't?'' Our response is that we value the privacy of our donors so much that we are willing to forgo any tax benefit.

I would make the same argument. If unions view that information as so sensitive they cannot bear disclosing it and they forgo the tax deductibility of dues, we would drop our request that they release the information. We wouldn't feel they should have to do so.

Senator Omidvar: Is there not a requirement in the Canada Labour Code, I think at section 110 or something, that if union members require and desire to understand how the union dues are spent they're able to get that information?

Mr. Wudrick: I guess the question then becomes: Are they able to do something with that information? I'm not sure about the particulars. If they are not entitled to view that information anonymously, to us that is an issue.

For example, if you look at the expenses of politicians, we don't demand that citizens go to a room and look in a book. They can go online and look. That anonymity in our view is very important.


Senator Boisvenu: I want to welcome our witnesses. You gave top-notch presentations.

I want to compare Canada, in terms of union transparency, with the other industrialized countries. Yesterday, I told a union leader that two major privileges are granted to unions, but now I would say there are three.

Most unions in Canada represent employees linked to municipal, provincial or government institutions. For example, if public servants weren't unionized in Canada, the unionization rate would be much lower.

First, if a company has a unionization rate of 50 per cent, 100 per cent will pay dues. The dues are tax deductible and paid by most non-unionized workers. Second, these people benefit from working conditions in terms of permanent employment that most non-unionized employees don't have. Therefore there are major advantages.

How does Canada compare with the other industrialized countries when it comes to the democratization of our unions and transparency? Is Canada at the head or tail in terms of union transparency?


Mr. Mortimer: We are at the tail. We have 32 labour codes in the country. Only 10 of them have provisions that entitle union members only to information. Many unionized Canadians are not actual members of the union. If under the 10 out of 32 labour codes that have disclosure provisions you're not actually a card-carrying member but are still paying union dues, this means you're entitled to absolutely nothing. Labour boards have turned down those requests.

Members requesting more than one year of financial statements, trying to look back, have been told, "No, you should have asked last year. You didn't ask in a timely manner.'' The unions are using their union dues to fight them at the labour board and the labour board is siding with the union. There are actual rulings in the country from labour boards to that effect, and the employees could not get the prior year's financial statements.

Finally, I submit, if you are a $60 million union and the financial statements consist of a one-page income statement and a one-page balance sheet that is not transparency to the person paying the dues, let alone to the taxpayer.

Several other countries have extensive provisions. The provisions that Mr. Hiebert put in his bill were modelled on those developed by none other than Democratic Senator John F. Kennedy, who implemented them as president. I think that speaks volumes.


Senator Bellemare: My question is for Mr. Wudrick and relates to the conversation on taxpayers and the statements focused on Bill C-377.

Can you name a country whose transparency measures are similar to the measures in the United States, France or Australia? There are six countries in total. Can you say, among those countries — I know of six — whether the documents to complete fall under the responsibility of a department other than the labour department? Can you name a country whose transparency measures for unions are equivalent to the measures for employers and employer organizations?

In the United States, that's what it means. It's less substantial than what's proposed in Bill C-377, and it's very expensive. That was my first question.


Mr. Wudrick: I don't have those examples handy for you. One of the primary objections to Bill C-377 was that it would be an onerous filing of too much information. It would be too much red tape and we're an organization that doesn't like red tape.


Senator Bellemare: Can you say whether, in the countries we rely on, it's the finance department or labour relations department? I know that, in all these countries, the labour department takes care of this issue. In addition, in all these countries, companies and employers are all subject to similar provisions. The information is posted on websites, and I've read the documents. Can you contradict me on this issue? Because I have another question to ask you.


Mr. Wudrick: I can't comment on that.


Senator Bellemare: There's another concern. In the United States, the cost of all this was assessed. We talked a great deal about the costs associated with Bill C-377. There are differing views on the costs for the government, but the costs for unions shouldn't be underestimated.


The department estimates the average reporting and recording burden keeping for the revised LM-2 form in the U.S. at 710 hours per respondent the first year and 539.4 hours per respondent for the second year. In total, if you look at the average amount of money, it amounts to $160 million in the first year in total. In Canada we have more respondents than in the U.S. because the law in the U.S. doesn't apply necessarily. They have fewer unions, and so forth.


When unions must pay to complete forms, they increase the dues. However, who will cover the cost of these dues? The dues will be partly tax deductible. To a certain extent, Bill C-377 is very ineffective and will increase the tax burden. Taxpayers who are unionized could ask for the information from their union. Taxpayers who aren't unionized could ask someone who is unionized to obtain the information for them.

In other words, the information could be made available at a much lower cost for taxpayers. Do you agree with this statement?


Mr. Wudrick: I find the two arguments made here by the unions to be somewhat contradictory. On the one hand they argue that they already provide this information and it's ready at hand to give to union members, but on the other hand that it will require so much expenditure in order to prepare these reports. I think it has to be one or the other in those cases.

Another point is about the additional cost. I always say this whenever the CTF is in favour of spending more on something. If we're in favour of spending on anything it is on accountability. People have argued, "Is it really worth having an ethics commissioner?'' Yes, it is worth spending the money on that if transparency is the cost.

As you say, it may be the case that unions would raise dues to cover off this cost, but the alternative is that people will pay dues and may not be able to know where their dues are going.

Senator Tannas: I want to talk about what I see to be the inherent intimidation in the card-check system. I had a great visit with Captain Mark Castonguay who is here with us and is with the WestJet Pilots' Association. They've just been through a recent unionization campaign. He talks about working for four days straight in a little aircraft cabin with a captain and a first officer. He got off the plane and went to the hotel where there was a union organizer saying: "Would you like to sign a card?''

One says, "Yes, I'm keen. I've been talking about it all the way for four days. What's the other person saying?'' That is the profile of people who do not want to get into a conflict with somebody and will go along. That is what gives people an opportunity in a secret ballot.

We recognize that. We heard from a number of RCMP members as we thought about the RCMP bill and the potential for intimidation without a secret ballot, and we acted on it.

Could you give us your perspectives on that? That's the part that troubles me. I take counsel from Senator Lankin. Yesterday a union organizer said that she didn't think there was any doubt that intimidation goes on with unions in drives and intimidation goes on with employers. In my view the sanctity of a secret ballot is the great equalizer. I wouldn't want to put those words in Senator Lankin's mouth. What do you think about just this issue? I'm interested particularly in all your views but specifically the views of FETCO and your association.

Mr. Hynes: It's a great question. We've not hidden our perspective on the particular issue that we do have a principled support of the secret ballot. We believe the secret ballot is not perfect in the democratic system in which we operate. However, we believe it is the most effective way to get a voter's perspective on an issue without any risk of undue influence from any outside forces.

That being said, I don't think we're always perfect on the employer side. There is a lot of blame to go around on these issues. I don't really think there is a perfect system. However, we're going to stand on the vote as our principled issue. When the vote was introduced in Bill C-525, the CIRB under its authority tightened the timelines for a lot of the processes.

Maybe there is a solution here where we can maintain the sanctity of that vote but still give the other side that supports the card-check system some comfort in knowing the opportunity for any undue influence from the employer side could also be mitigated. We have tighter timelines. Under the code we have the opportunity to vote in a location that's not the workplace.

Alternatives could be entertained that could still give the individual person the right to the sanctity of the vote to vote their own conscience secretly.

The Chair: Before he departs Mr. Lammam would like to have a brief comment with respect to the question raised by Senator Bellemare. Am I correct?

Mr. Lammam: The previous line of questioning.

The Chair: Yes.

Mr. Lammam: I want to make a point about the difference in financial disclosure rules internationally. It's absolutely the case that in the United States there are more stringent and rigorous requirements of unions. Certainly the burden relative to Canada will be greater for that reason.

However, I don't want to lose sight of why it's so important for us to talk about financial disclosure rules. In Canada, again, union dues can be used for things the union wants to spend on outside of representation, things like political and social causes. That's one of the reasons why financial disclosure rules are so important both for people wanting to join a union and for unionized workers.

Meanwhile in the United States, which is in fact administered by the Department of Labor, they have rules that allow unionized workers to opt out of union dues that are unrelated to representation. That is in fact the bare minimum requirement in the United States. In addition, in so-called right to work states, about half or slightly over half of the states in the U.S., workers can opt out of paying union dues that are related to representation. It's even more important in Canada for us to get sound financial disclosure rules because workers currently don't have any of those options in the country.

That was my other point. I'm happy to elaborate, if I have time, on our current discussion as well.

The Chair: Perhaps you will, but I understand you're departing in two minutes, so it's unlikely. Thank you for your appearance.


Senator Dupuis: I want to know whether each of you has information regarding the impact of the secret vote or card system on the intimidation experienced by women. We're talking about employees, which seems to be a neutral topic. However, what interests me is that, from a human rights perspective, there are many complaints of sexual harassment in the workplace in both the private and public sector.

I appreciate the fact that you raised this issue, Mr. Hynes, as part of the discussions on the tripartite plan. Can you provide more information on the subject? Thank you.


Mr. Hynes: When I raised that as an example it wasn't related specifically to this conversation. I raised it as an example of an issue that the parties are addressing under the tripartite model.

There are many others. Last year we worked on an issue for 18 months. I am working in confined spaces. This seems like pedantic stuff, but it's important in the workplace that we work through these occupational health and safety and human rights issues, and we try to do that through the tripartite model.

To answer your question, I don't have any information on what the impact might be.


Senator Dupuis: I want a response from the two other witnesses here before us.


Mr. Mortimer: I have seen no research. I have read nothing even anecdotal, senator, on the specific point you raise.

Mr. Wudrick: That is not my area of expertise.

Senator White: I'm going to speak specifically on the secret ballot. Our democracy is built on a secret ballot system. It's interesting that we have people arguing against the secret ballot.

In dealing with Bill C-7, the RCMP bill, over the last eight or nine months, although it wasn't the number one issue identified by RCMP members, sworn officers and civilian members, it was a concern of theirs. To be fair, their concern went both ways and I'm asking whether you would agree it goes both ways. Not having a secret ballot could impact them in relation to who in the future would represent them if they thought they voted for another organization but as well as the employer or supervisors.

Do you see the opportunity in particular when we look at an organization that's moving into a labour area if and when this bill passes? Actually it might be quicker than Bill C-7 would bring it. Because they voted for another organization, don't you see the opportunity of not having a secret ballot impacting them from an employee perspective? It is not only the union or potential future union but also the employer? Have you seen that in the past?

Mr. Mortimer: I have certainly seen where employers are concerned about whether the union truly reflects the wishes of the people because they don't know whether the cards were all signed truly, freely and willingly. Some cards are absolutely signed appropriately but some aren't.

The RCMP is an interesting one because a lot of challenges have been very public on the sexual harassment side, particularly for female officers. I spent 16 years taking the phone calls and the emails of frontline Canadians facing union drives. When you get 20 visits in one weekend from an organizer, when they walk in the front door of your home and refuse to leave, it may be the minority but it is still tragic.

We are concerned about bullying. How can we leave in place a card-check system that has documented cases? They are rare because there is no one to speak up on behalf of them. That's the problem. I'm not surprised that RCMP officers are concerned. Some want the secret ballot. Others really want the union and want to get it in. They may be willing to push. Other people don't want the secret ballot because they want the union more than they want the true, free choice.

Senator Batters: Mr. Hynes, thanks very much for the important comments that you made today about FETCO support for mandatory secret ballot for Canadian workers. Has Bill C-525 been Canadian law for about two years?

Mr. Hynes: It is 18 months to two years.

Senator Batters: I know you have had limited time here but could you tell us a bit more about FETCO's experience with how the mandatory secret ballot process provided by Bill C-525 has gone during that 18-month to two-year timeframe?

Mr. Hynes: This came up yesterday when Ms. Brazeau was speaking to the experience of the implementation of Bill C-525. I would say that it's too soon. We have had 18 months. There has not been an enormous amount of activity under that bill. It's premature at this point to provide commentary on whether or not the world is better or worse under Bill C-525 than it was previously. I have no direct experience upon which to draw to say whether I think the world is better.

On principle certainly I would say that we are supportive of the components of the bill. We would like to see it continue for a while longer to truly understand its impact and better understand how it's being implemented through the federal sector.

Senator Batters: Mr. Hynes, while Bill C-4 might take out other components of those two particular bills, would it be your preference and the preference of FETCO that the mandatory secret ballot provision be retained in Canadian law? Perhaps there could be some sort of a provision indicating a review period of perhaps a few more years and then look at that issue again.

Mr. Hynes: Yes, it would be. If there are ongoing concerns about the secret ballot, there is an opportunity that we might entertain alternatives to mitigate some of the concerns being raised for those who prefer the card-check system within a regulatory framework.


Senator Bellemare: Again, my questions are for FETCO Inc. I'm pleased to see your openness to allowing provisions that may protect employees from intimidation by employers. Nevertheless, currently the legislation doesn't contain any measure to provide for this protection. We know that Bill C-525 contains significant gaps.

My first question is the following. Will there be real provisions regarding consequences an employer would face for adopting unfair practices? In light of the fact that unions lose their certification, are there equivalent sanctions for employers?

I'll also ask my second question, and you can answer that one afterward. We didn't talk about the decertification process. The process set out in Bill C-525 seems alarming, because with 40 per cent of signatures, a majority vote would be obtained from employees. In other words, it would be possible to decertify a union with a vote of less than 50 per cent plus one. Isn't there cause for concern here? In Quebec, the vote was set at 50 per cent plus one. What are your comments on these two issues?


Mr. Hynes: I would like to speak to the second issue first. The decertification provisions at 40 per cent would then allow the vote. The vote would be required to be a majority of members to decertify.

Senator Bellemare: Yes, a majority of voters, not of employees.

Mr. Hynes: Yes, a majority of voters. We believe that's reasonable.

Senator Bellemare: We don't know.

Mr. Hynes: As it is in the certification process and as it is in the democratic system with those that cast ballots, we look at a majority of those who vote. We're generally comfortable with that. We think it's fair. It allows the secret ballot right for employees who exercise that right.

In addition, I represent a constituency of very large employers that are almost exclusively heavily unionized. We live in a unionized environment at FETCO. Our goal is not to decertify unions. Our goal is not to stop certification efforts at the door.

We want to remind senators today that we have a principle around the secret ballot. When a certification effort comes or a decertification effort is considered, we believe those individual employees would have a right to vote their conscience secretly.


Senator Bellemare: In addition, what would be the consequences for employers that adopt unfair practices?


Mr. Hynes: I don't have that specific information available to me. I am sure the Canada Industrial Relations Board has the tools at its disposal to address grievances brought forward under unfair labour practices to employers as they would to the unions as well.


Senator Bellemare: So, you don't know the consequences for companies that adopt unfair practices.


I ask Mr. Hynes because he is in the field.

Mr. Hynes: Do I have the specific code requirements in front of me? No. I could find them. I can't recite them off the top of my head. My colleague to my right may have better information on that question.

Mr. Mortimer: The Canada Industrial Relations Board has the power and has in the past unionized a group of workers because of the unfair labour practices of the employer. It's called remedial certification or automatic certification.

That's the ultimate hammer that they have. That's the great fear that guides many employers to not commit unfair labour practices because you could get a union if you commit them. That has happened in the federally regulated sector along with the other remedial powers that the board has always had and has been utilized against employers for committing unfair labour practices over the decades.

Senator Pratte: Mr. Mortimer, you have given us pretty telling examples of intimidation tactics used by unions against workers. Since you're an employer organization have you done any work with your members to prevent them from intimidating? Have you got a code for instance? Since this is your domain of work, are you doing any education like other organizations are to encourage them to have good conduct or things like that?

Mr. Mortimer: Our mandate since inception in the year 2000 has been to run a website where we make government forms available to Canadian workers. We started in the early days of the Internet when many labour boards did not make forms available to taxpaying workers.

We do what basically no board does. We provide a comprehensive explanation based on the statute, the regulations and the case law of all 11 private sector labour boards as to how an employee would fill out those forms lawfully, properly and file them. Our sole mandate is to operate the website and the 1-800 information line to answer workers' questions.

Senator Pratte: The answer is no.

Mr. Mortimer: It's not our mandate at all and never has been. Senator Batters correctly recalled the record of what the very limited budget we get based on the Conseil du patronat du Québec providing us with $1,000 a year, which is what they provide for us to operate.

Senator Pratte: You would agree that we could certainly find as telling examples of intimidation manoeuvres made by employers against employees.

Mr. Mortimer: I have testified to that but I believe the very well-funded unions, the comprehensive provisions and the jurisprudence of the country demonstrate how employers are effectively addressed by labour boards for doing those things. As a former head of human resources of major companies who went through union drives, we were never charged with unfair labour practices because we always behaved lawfully.

Senator Joyal: Yesterday the minister in her presentation before this committee made the following statement:

My own department under the previous minister, Minister Leitch, undertook a study while Bill C-525 was being debated in Parliament, and that study concluded that the use of a mandatory vote regime has been an important factor in the decline in union density in the Canadian business sector. That study was not shared with parliamentarians at the time by the previous government.

The evidence shows that employer interference and, more so, employer fear of employer interference is a real phenomenon and is the reason why a mandatory vote system reduces the rate of unionization in this country. . . .

Would you care to comment on that conclusion?

Mr. Mortimer: I'm going back to the 37 years of history in Nova Scotia, where there are still unionizations that take place every year in that province, have taken place every year, and workers still in those secret ballot votes vote in favour of unions. I believe it does cause a density reduction because if unionization relies on the types of things that go on in a card-check jurisdiction, then union density is artificially high. I believe that study reflects what workers actually want.

It's interesting to look at decertification. Decertification under the Canada code had to be a vote but certification didn't. Is that fair to workers? How did the tripartite process work out for workers there? It didn't. In Quebec, when you go to decertify a union in Quebec, all of your decertification cards must be filed with the union that is then allowed to engage in a campaign, and they do, and they come back at the workers to try to get them to recant their signatures. However, union cards are never provided to the employer. They only go to the labour board. That is an unfair, biased system and the entire country has a history of it. This is how workers are not served, senator.

They are not at the tripartite table. They are just simply not. We are a very small organization, yes, funded by employers, but I will say and I will defend anywhere anytime that we are trying to speak up for the least powerful party. Those are the people I hear from over the phone and by email. They are like the WestJet pilot who called me last night and spoke about the fact that what ALPA may well try to do is file its cards when Bill C-4 becomes law, when employees signed cards thinking they would get a secret ballot vote, and I don't think ALPA will care. The challenge for ALPA will be this: Will they only submit cards that are signed by WestJet pilots and dated after Bill C-4 actually comes into force? I have my doubts.

Senator Joyal: Mr. Hynes, what is your comment on that?

Mr. Hynes: That study that was conducted under the previous government did come up at committee when we were discussing Bill C-4 at the House of Commons. It indicated the research that had been done and that the secret ballot was potentially resulting in a lower unionization rate.

I agree with my colleague Mr. Mortimer that on principle we believe employees should be given the right to vote secretly for their union. If they do and the results happen to change the unionization rate, we believe that's a legitimate demonstration of them exercising their democratic right.

Senator Omidvar: I have to admit to a bit of confusion. If there is secret ballot there is freedom from intimidation. If there is a card-check system there is intimidation of another kind. I have read some of the research and a mandatory secret ballot has resulted in a decline in union density. That is also evidence.

We have some other evidence. I am reading from political scientists who pointed out that strong labour unions are closely associated with low levels of inequality and more generous social programs. In other words, union wins in the long term are wins for all of us. In your world view are unions essential, desirable or undesirable?

Mr. Mortimer: There is no question in the view I hear from unionized Canadians that what shows up in the research in particular is people feel there was a great need for unions at one time. I will tell you that most Canadians who are not unionized don't actually want to be unionized. The Canadian Labour Congress' own 2003 research clearly demonstrates this. They went through and documented all of the reasons that they found in their research of Canadians why people were refusing to sign cards and why people were refusing to vote yes. One the famous quotes in their report — and we keep it on our website — is that fear of unions, not fear of employers, is the greatest obstacle to union organizing. The number one objection according to the Labour Congress was the union focus on seniority.

If we want a certain kind of society we need to make sure that we're getting it as the true free will of what the workers, the taxpayers and the voters want. If we have a union construct that artificially inflates the union density rate, and then they don't have to be financially accountable to people like they are in other countries, I think we have a very frustrated labour movement.

I'll close this section with this point: Labour board chairs tell me that the number one filing before all of their labour boards is what's known as a duty of fair representation complaint. That is a unionized Canadian filing a formal complaint against their union. Those complaints are greater than all others as individuals and I believe at some boards greater than all others combined. That is telling.

Senator Omidvar: You will admit that employers also intimidate. You're making it sound as if the unions are engaged in a war of intimidation against their members. Yet we know — and this is out in the media — when employees of Tim Hortons want to organize they are threatened with loss of jobs, not loss of union membership. Their livelihood is at stake.

Mr. Mortimer: That incident took place, and there is a collective agreement today in that Tim Hortons in Winnipeg where the franchisee engaged in highly inappropriate conduct. There is a three-year collective agreement with Workers United Canada Council. I am familiar with these situations.

I believe, senator, that our legal system has incredible provisions. I have no doubt that the very talented union leaders, their very capable lawyers and their very committed staffers take employers on when they do those things.

I'm also trying to share with you, as someone who was a long-time human resources leader in this country, the types of training that we provided in those days to our managers and the risks that they had to their own jobs if they went out and did the kind of things that you cited in Winnipeg.

Those people still got a union in spite of what he did. I believe the system is working.

I am simply trying to say that who is not represented is the unionized Canadians who want a different legislative construct and aren't getting it because they are not at the FETCO table with the Canada Labour Congress and they're not sitting here today. I am the only minor voice.

Senator Sinclair: Yesterday, in the course of the presentation we heard from the minister and other representatives of the government the constitutionality of the previous legislation that is being impacted by this bill was raised. In particular, there was reference made to the fact that partly because of lack of consultation, but on the basis of a view about the unconstitutionality of the previous legislation, 7 out of 10 provinces have objected to it. There is currently a court action pending in Alberta challenging the constitutionality in the application of the previous legislation to provincially mandated and provincially regulated unions.

If that is successful and the constitutionality is held to be, in fairness there is a possibility the entire legislation would be struck down. Even if it's held to be only applicable to federal jurisdictional entities, the impact of the previous legislation would have less than desirable effect based upon the intention that it be applicable to all unions.

My question to you is this: If there is a question with regard to the constitutionality of the previous legislation, why shouldn't we correct it?

Mr. Mortimer: There can always be questions around any number of issues with legislation. What our court has considered to be constitutional in the past decades later they have considered to be unconstitutional. There is a fundamental change in the court's view of the status of labour law. The trilogy of the 1980s has effectively been overruled by health services and other decisions that have followed since then.

There is probably no part of the Bill C-377 debate that I spent more time on than that one in terms of reading what former Justice Bastarache wrote, the testimony of a professor from Alberta, and the cases that were cited.

Charities that are provincially regulated still have disclosure under the Income Tax Act of Canada. No charity, in fact no one, has challenged the constitutionality of provincially regulated charities providing disclosure statements by virtue of a federal piece of legislation. The status of charities under the Income Tax Act is highly analogous to the Bill C-377 provisions.

There are some things we have to find out. As someone who in university studied American constitutional law and some of the fundamental shifts over the decades in the court, I side with Justice Bastarache and his view that Bill C-377 was constitutional and would survive a challenge. The people who came and spoke against it did not cite one case. He did. When they challenged the privacy of it they did not cite one case.

There were an awful lot of statements, senators, which were just statements. They weren't grounded in someone quoting from a ruling of our high court or quoting from legislation. I called them campaigning against the legislation on behalf of partisan parties.

Senator Sinclair: As opposed to what is going on now, I guess.

Mr. Mortimer: No, because I felt that Justice Bastarache backed it up with case law. So did the professor from Alberta. With all due respect they were the only two that I read that did it the entire time.

I am prepared to be corrected on this point, if you can find a submission or evidence from another appearance on Bill C-377 that contradicts that. I have read all the committee hearings. I have read almost all the submissions. I spent a lot of time as a volunteer reading this stuff in order to have confidence in what I'm saying. If I didn't believe it, senator, I wouldn't say it. I would say the reverse.

Mr. Hynes: My comments today are exclusively focused on the other portion of Bill C-4 which is Bill C-525, so I have no specific perspective on Bill C-377.

Mr. Wudrick: With respect to the constitutionality Mr. Mortimer has pointed out that it is unclear. There is an argument to be made that there are unconstitutional portions of the bill but we don't know for sure. There was a Supreme Court justice who gave an opinion that it was constitutional and that weighed heavily, in our view.

That said, our support for this bill was a take it or leave it option. When a bill reaches the stage that it comes here we were very concerned that you would end up throwing the baby out with the bathwater. You could acknowledge that a bill has defects in it, but the principles that underlie it are still important.

I am cautious, given my organization's view of an unelected Senate, that I'm not sure I would argue that the Senate should be the one making those changes, but certainly in principle I'm not opposed to our elected officials making those changes.


Senator Bellemare: Mr. Mortimer, I want to correct an impression. Is Merit Canada a member of your board of directors?


Mr. Mortimer: Merit Canada is not a member of LabourWatch.

Senator Bellemare: It is on your website, Merit Contractors Association.

Mr. Mortimer: No, it is Merit Saskatchewan, a provincial association. Karen Low, the executive director, sits on our board of directors today. Merit Canada as an organization has never been a member of LabourWatch. I would love them to be a member but they have never done that and given us their money; only some of their provincial associations and not all of them.

The Chair: Gentlemen, thank you for appearing here today and for your contribution to our deliberations on this legislation. It is very much appreciated.

That concludes our work for this week, members. Next Wednesday we will be dealing with clause-by-clause on this legislation an on Thursday we will be begin our hearings on Bill C-224, which is also known as the good Samaritan law.

(The committee adjourned)

Back to top