THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, December 7, 2023
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 11:35 a.m. [ET] for clause-by-clause consideration of Bill S-244, An Act to amend the Department of Employment and Social Development Act and the Employment Insurance Act (Employment Insurance Council) and to discuss a draft agenda (future business).
Senator Ratna Omidvar (Chair) in the chair.
[Translation]
The Chair: My name is Ratna Omidvar and I am a senator from Ontario.
[English]
I am the chair of the Standing Senate Committee on Social Affairs, Science and Technology.
Before we begin, I would like to ask my colleagues to do a quick round table for the audience here or online, starting with the deputy chair of the committee.
Senator Cordy: Jane Cordy, good morning.
Senator Moodie: Good morning, Rosemary Moodie, Ontario.
Senator Osler: Gigi Osler, Manitoba.
[Translation]
Senator Petitclerc: Chantal Petitclerc from Quebec.
Senator Seidman: Judith Seidman from Quebec.
Senator Bellemare: Diane Bellemare from Quebec.
Senator Mégie: Marie-François Mégie from Quebec.
[English]
Senator McPhedran: Marilou McPhedran, Manitoba.
[Translation]
Senator Cormier: René Cormier from New Brunswick.
[English]
The Chair: Thank you, colleagues.
Today we are proceeding to clause-by-clause consideration of Bill S-244, An Act to amend the Department of Employment and Social Development Act and the Employment Insurance Act (Employment Insurance Council)
I would like to welcome back officials from Employment and Social Development Canada who are with us in the room today: Mona Nandy, Director General, Employment Insurance Policy, Skills and Employment Branch, Employment and Social Development Canada; and Steven Coté, Executive Director, Employment Insurance Modernization Policy and Planning, Skills and Employment Branch.
Thank you for joining us today.
Before we begin, I would like to remind senators of a few points: If at any point a senator is not clear where we are in the process, please ask for clarification. We want to always ensure that we are all on the same page at the same time and on the same line.
In terms of mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved in a clause, amendments should be proposed and disposed of in the order of the lines of the clause.
If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move to delete the entire clause but, rather, to vote against the clause.
I would also like to remind senators that some amendments that are moved may have a consequential effect on other parts of the bill. It would be useful if a senator moving an amendment identified to the committee other clauses in the bill where this could have an effect. Otherwise, it becomes very difficult for members of the committee to remain consistent in their decision making. Because no notice is required to move amendments, there could, of course, have been no preliminary analysis of the amendments to establish which ones may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, it is my job to listen to arguments, decide when there has been sufficient discussion of a matter or order and make a ruling.
The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote, which, obviously, provides unambiguous results.
Finally, senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above?
If not, we can now proceed.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-244, An Act to amend the Department of Employment and Social Development Act and the Employment Insurance Act (Employment Insurance Council)?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause one carry?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
[Translation]
Senator Bellemare: I would like to make an amendment to clause 4; you are about to get it. There are two paragraphs to it. I have already spoken about the first paragraph, which related to an error in the bill. We had already agreed, as part of our study of the bill, that the advisory council would meet at least three times a year. This was in the early drafts of the bill. However, when we received this version, it was not there. It must have been lost in translation. Paragraph 10 was provided.
Following the work of this committee, which everyone who helped draft this bill listened to carefully, some comments we received made us think we should add another clause that would follow paragraph 10.
[English]
This one is the same amendment that Bill S-244 be amended in clause 4 on page 5 by adding the following after line 10.
Senator Seidman: I am sorry I’m not sure I’m looking at —
Senator Bellemare: Page 5.
Senator Seidman: But I don’t have a clause 4 on page 5.
Senator Bellemare: Article 4 —
Senator Seidman: Is on page 4.
Senator Bellemare: — is a long article.
The Chair: Senator Bellemare, please direct us again to the page and line number.
Senator Seidman: Yes.
Senator Bellemare: Okay. Article 4 starts — I will tell you on what page — on page 3. Page 3, article 4.
Senator Seidman: Article 4.
Senator Bellemare: Article 4, starts at page 3.
The act is amended by adding the following after section 29.
Senator Seidman: Okay, 4 is up here.
Senator Bellemare: This is 5331 —
Senator Seidman: So it’s not clause 4, it is article 4.
Senator Bellemare: Then on page 5, it is always the same article 4.
Senator Seidman: Okay.
Senator Bellemare: On page 5, there was a paragraph, 10. On page 5, you see paragraph 9? “Non-remuneration.”
Senator Seidman: Yes.
Senator Bellemare: Okay. So the modification is to add paragraph 10 and paragraph 11.
Senator Seidman: Okay.
Senator Bellemare: Okay? That would follow.
Senator Seidman: At line 10?
Senator Bellemare: At line 10.
[Translation]
Senator Seidman: Is that the same in French?
Senator Bellemare: Yes, it’s the same.
[English]
I will read the amendment:
That Bill S-244 be amended in clause 4, on page 5, by adding the following after line 10:
“(10) The Council must hold at least three meetings every year.”.
This is the amendment I told you before.
Paragraph 11: “The commission must submit an annual report setting out the council’s main activities and its results to the minister who must table it in Parliament. The report must be submitted to the council for approval before it is published.”
It is for accountability purposes. It will help to know how the advisory council works. It answers a number of questions about accountability that you had and so forth.
Senator McPhedran: Senator Bellemare, I notice that you have retained the control of the commission; the commission submits to the council. The council can block that report if they so choose, correct, if that is your intention?
Senator Bellemare: That’s right. They have to say, yes, this is what we said or this is what the advice was. In other words, the report that the commission will prepare regarding the work of the council should be approved by the council.
Senator McPhedran: If the council wants to keep something away from the public —
Senator Bellemare: Oh, yes, it just —
Senator McPhedran: — and away from Parliament, they can stop the commission report?
Senator Bellemare: On the council, you have the two commissioners. The other two commissioners are there as observers. In other words, the deputy minister will be a part of the council. He cannot vote. But he is sitting there as a member, as an observer.
What it means is that the report that the commission writes about the activities should be signed or approved by the advisory committee as a whole. Otherwise, there’s no report.
Senator McPhedran: Right. That is your intent. Thank you.
Senator Bellemare: It does nothing to do, as hiding, it is just saying what they say. It is stating what they have been doing. Otherwise, there is no report.
Senator Osler: Thank you, Senator Bellemare.
I have two points. I support number 10 in the amendment. I wonder where it currently is placed would fall under non-remuneration, and wouldn’t it be better placed under number 6, Meetings of the Council?
The second point is in follow up to Senator McPhedran’s question about the report must be submitted to the council for approval before it is published, and her line of questioning about the council could block it, is it your intent that the report must be submitted to the council for its approval or for its knowledge or consideration?
Senator Bellemare: The commission, which means the deputy minister and the commissioners of employers and labour, they will write the report saying that they met with the advisory council and will report on its activities.
In order to be certain that the commissioners don’t forget anything or what they report is correct, then the report needs to be approved by the advisory committee. Okay? Do you see what I mean?
The advisory committee will submit a report at the end of the year; they will have annual review of their activities. The advisory council will say, yes, the report is correct. Then, the commission — the actual commission — will give that to the minister and to Parliament.
But the commission will have to have the approval of the advisory council. That is normal. In other words, if a committee in the Senate does a report, it is not only the steering committee that approves it. You read it to say that this is correct. The report on the advisory council, of their activities, they should say, yes, we agree, this is what we did during the year.
Senator Osler: Thank you.
The Chair: I take Senator Osler’s point that your amendment on the number of meetings is better situated under “meetings of the council” which is number 6 on page 4 — I do agree with that.
Senator Bellemare: You mean it is just an ordering of numbers?
The Chair: It is.
Senator Bellemare: So that it can be put, instead of 5, it could be —
Senator Cormier: It will be 7.
Senator Seidman: It could be 6.1 even.
The Chair: 6.1.
Senator Seidman: Under “Meetings of the Council”, clause 6.
The Chair: We need the correct wording.
Senator Seidman: Who is attending, and then you could say that the council must hold at least three meetings every year or put it 6.a or 6.1 or something like that.
Senator Dasko: We do 6(a).
Senator Bellemare: Even the reporting, it could be 6(a) and 6(b).
The Chair: Honourable senators, we are coming to a good place. Thank you, Senator Osler. With your permission — in fact, you have to move it — that the amendment is 6(a) and 6(b), but that has to be correctly worded. Someone over here will have to do that.
In the meantime, Senator Cormier, you had a question?
Senator Cormier: It was a matter of clarification. I got the answer. I do not have any more questions, Madam Chair.
The Chair: The law clerk advises that the amendment would be 6(1) and 6(2) and so while you are thinking of an amendment to your amendment, let me ask the officials whether there are any unintended consequences to this amendment?
Thank you, Ms. Nandy.
Mona Nandy, Director General, Employment Insurance Policy, Skills and Employment Branch, Employment and Social Development Canada: Thank you, chair, for the question.
Like you, we are looking at this amendment right off the bat. I would say, as we did last week, that under the legislation as it stands now, under the Department of Employment and Social Development Act, policy-making with regards to the EI program rests with the authority of the minister, with the commission having responsibility for the administration of the program.
Under paragraph 4(3)(d) of the proposed legislation — I was reading along as you were commenting — the council has the responsibility to prepare reports relating to the work of the commission and asks the commission to present these reports to the minister so they may be tabled in Parliament.
Again, having not drafted this, wondering about the relationship between these two things, the council already has, according to the way the bill is drafted, the ability to prepare reports.
Then there is this new, proposed amendment with regard to additional reporting responsibilities that would then be conferred on the commission.
I am not quite clear, again, at first reading, how that interplay works.
The Chair: Not being an expert on the EI law, I would imagine that this advisory council that Senator Bellemare is proposing to this bill, its report would add texture, possibly advice and context to the annual report of the commission; to me, that makes sense, or is there a conflict here that I am not understanding?
Ms. Nandy: Again, looking at this on the face of it, we would need to take this back and think about it further.
In the more global scheme, the commission has a responsibility to assess and monitor the EI program, understanding that what this bill is proposing to do is to add an additional body that reports to the commission.
I am not quite clear as to whether or not there could be unintended consequences for the impact of those respective roles that are already in legislation. There could be blurring of lines. We would need to take this back, senator. Unfortunately, I cannot speak to that in more depth having just received the amendment now.
[Translation]
Senator Cormier: Just to make sure I understand this properly, the council will be the commission’s consultation tool. Is there anything preventing the commission from adopting the council as a consultation tool?
Ms. Nandy: I think the commission already has the responsibility to ensure that engagement with its stakeholders. As I understand it, the purpose of this law or proposal is to create a new organization or council to bring together stakeholders, such as employers and workers, within a single organization and provide advice and guidance to the commissions. The commission already has the responsibility and mandate to undertake that engagement.
Senator Cormier: How does the commission carry out this consultation now if it doesn’t have an advisory council?
Ms. Nandy: Thank you for your question, senator. As I explained last week, the commissioners, for example, hold meetings with their stakeholders on a regular basis.
[English]
These annual forums that are held with workers and employers, there are also conversations that individual commissioners have, ad hoc meetings with their stakeholders as part of their role to represent the stakeholders; that is a part of the appointment process. What we can see in the legislation — again, we would need to take this back — but there is nothing preventing the commission and the commissioners right now from having common, joint conversations with their stakeholders; in fact, as part of the EI consultations that were held in 2021-22, those kinds of joint conversations happened with the government present. Those consultations were co-led by the commissioners and the then Minister of Employment, Workforce Development and Disability Inclusion at the time to have consultations.
There is nothing we can see in the legislation that prevents those kinds of conversations of joint employer-labour conversations currently.
The Chair: There is nothing that prevents them, but nothing that legislates them either. That is the point of Senator Bellemare’s legislative intention.
Senator Cordy: To your point, chair, you have explained it very clearly that there is nothing that prevents them, but there is nothing that promotes it, either.
I recall both commissioners were witnesses and employers and employees who sat at the end of the table. They were all in full agreement that this would be very helpful to everybody and that, in fact, it would force groups of employers and employees to get together, to look at what is happening and whether there should be changes.
I thought they were both in full agreement and did not say that this was happening. They did not say it was not prevented, but it is not happening. This should make it happen.
The Chair: If I may ask you a question, Senator Bellemare, not pertinent specifically to the amendment but in general. Germany has typically had excellent labour management relations; that is the loadstar we look to. It is built into their culture.
Can you tell us if they have something like this, what you are proposing?
Senator Bellemare: Thank you for your question. There are a number of countries who have boards like that.
Canada is participating in high-level recommendation in convention at the International Labour Office where they signed that they would install social dialogue in the employment insurance program.
In Canada, the Employment Insurance program was, when it was first enacted, a tripartite agency with the government, management and labour.
Progressively, it came within the purview or the power of the department. Progressively, all the powers of social dialogue were diminished. Actually, the commission is only the deputy minister and two representatives. They do consult, but social dialogue is more than consultation. It is the establishment of a table where both parties are there and they find a common solution. When you consult everyone, you have all sorts of solutions, and you pick the one that you think you like. Government picks the solution it likes.
When you consult, usually — and I chaired a board similar to this in Quebec in the 1990s. We had success in having regulation of bills for which the employers were against, and we designed the rules of this bill with the unions and the employers. The government was really happy about that because the implementation of the bill, which was an obligation for employers to invest 1% of the wage bill into the training, the rules of that were negotiated at one table. They meet at least eight times a year in Quebec. They look mostly at training, but they also look at Part 2 of EI.
This bill was designed with the unions and the labour and employers’ associations, which do participate in the consultation. They would like to meet regularly to build trust and to see what the best ways are to implement skills programs and so forth. There is unanimity about that.
Certainly, the department doesn’t like that because it will have a body where they will have to be accountable for what they say. Usually, in my practice, like in Quebec, we have not had at the provincial level. We adapt at the sector level, and we adapt at the local level. It helps with the efficiency.
The Chair: Thank you, Senator Bellemare. Ms. Nandy, going back to the amendment that the commission must submit an annual report setting out the council’s main activities and the report must be submitted to the council for approval before it is published, there’s actually nothing in this bill that says that the EI commission must take it into account. It’s a report submitted to them. What they choose to do with it is their prerogative. Am I right?
Ms. Nandy: I think so. I’m reading the amendment now. I think it’s accurate to say that on the face of it, the commission is required, according to the way this language is drafted, to develop a report. Must seek approval from the council on that report before it is published, and must provide that report to the minister to table.
Senator Osler: Thank you. I was thinking about Ms. Nandy’s remarks at the beginning regarding the other part of the bill under powers on page 4, clause 3(d), where it states, “In carrying out its mandate, the council may prepare reports relating to the work of the commission.” Then with this amendment, we now have “must submit an annual report setting out the council’s main activities.”
My question for this committee and perhaps Senator Bellemare, I think both are aiming to achieve somewhat of the same objective; one is a “may,” one is a “must.” So my question for Senator Bellemare and our committee, is it confusing having these two paragraphs? Is there a way we can help resolve all of this?
The Chair: That was a good catch, Senator Osler. Thank you.
Senator Bellemare: The power in the bill is the actual thing of the commission. The commission’s powers are distributed within the law. It’s really hard to see what the commission is doing.
This was taken from the website that describes what the actual commission does. What it does is prepare an annual report of evaluation of EI. It’s an annual report of control and evaluation, and they supervise that. This relates to the kinds of reports that they are doing.
The advisory through the EI and employers’ commissioner, that’s another thing. It’s a council. We ask the council to meet three times a year. They have an initiative of the subject they want to talk about among themselves. The idea there is what they have been talking about three times a year should be in a report saying the advisory council to the commission talked about that at those meetings, and they’ve reported this to the commission. It is tabled so the public knows that this advisory council exists.
Maybe the wording of this is ambiguous. I’m not sure. We thought it would be useful because of the comments you made last week and the question. The commissioner said it might be useful if they want to have that, but I’m not forcing you on this thing. I want the bill to pass, but I think it’s important that they meet three times a year. If you think it is confusing to have a report on those meetings —
The Chair: Senator Bellemare, your bill is about the creation of a council.
Senator Bellemare: That’s right.
The Chair: That is consistent throughout the bill. Now, in this last amendment, the commission must submit a report on the council’s activity, you are actually reaching into the powers of the commission. I think it is confusing.
Senator Bellemare: It is consistent.
The Chair: Either you leave it out or you say that the council must submit an annual report to the commission. That’s linear. That makes sense.
Senator Bellemare: That’s perfect. Thank you.
The Chair: Senator Seidman, and then I have a piece of information to give you.
Senator Seidman: Thank you. I think you just solved one of my problems, so thank you very much for that.
I still have trouble with the point that Senator Osler brought forward. Knowing drafting issues, I presume you used the law clerk’s office to draft this?
Senator Bellemare: Yes.
Senator Seidman: I’m surprised it didn’t come up that the constant, consistent issue we have in drafting language with the use of “shall,” “may” and “must,” it is an issue and it is usually discussed in drafting language. There’s a lot of resistance to using “must” for all kinds of conventional reasons. I’m just not sure, but I know this is an issue that comes up very often, especially when we add clauses that say, “The minister must report to Parliament” or “We request reporting every three years.” We do that a lot, adding clauses to pieces of legislation for reporting requirements.
I’m just hoping that, in fact, this was considered when the law clerk draw this up because, as Senator Osler says, page 4, clause 3 says, “In carrying out its mandate, the council may (a) invite persons, (b) establish working groups, (c) issue public opinions and (d) prepare reports relating to the work of the commission.”
I’m just worried about now using “must.” Not that I disagree because I think it’s important for transparency reasons, but I’m asking about the drafting language of this.
[Translation]
Senator Bellemare: In French, we say “La Commission présente . . .”
[English]
It’s not “must.” In English, we could reword that saying — I will say it in French first.
[Translation]
The Council submit an annual report setting out its main activities.
[English]
“The Council submit an annual report setting out its main activities and its results to the commission who may table it in Parliament.”
The Chair: Colleagues, the law clerks are working right now on a new version of the amendment reordering in position.
Senator Bellemare, would you like to withdraw amendment 11, or would you prefer to redraft it?
Senator Seidman: And 10 as well. It says, “The council must hold,” and, “The council must submit.” Both of those have to be redrafted, I think, or we have to consult with the law clerk’s office about the use of that language.
Senator McPhedran: I want to respectfully disagree with that. As someone who has done some drafting over the years, my reasoning is that this entire bill is geared to the council. It is creating the council. It is defining the responsibilities of the council. It is appropriate in the bill specific to the commission.
Senator Bellemare: Council is an advisory to the commission.
Senator McPhedran: Yes, so you’re creating the council. By creating it, and by saying what it must do, is appropriate. That is the nature of this bill. You’re not overreaching. It’s when we get into the second part, 11, that I think is the real issue. Such declaratory language becomes really problematic because the commission is not the primary focus and you can’t dictate.
Senator Bellemare: I hear that. I think I will withdraw this part of the amendment and keep only number 10, which will be 6, paragraph 1.
The Chair: Thank you, Senator Bellemare. The law clerk is now working on the new wording of the amendment and the new placement.
Colleagues, in resuming our work on Bill S-244, the first order of business, Senator Bellemare, are you willing to withdraw the entirety of the amendment that you submitted earlier?
Senator Bellemare: Thank you, chair. If I may, I will withdraw my amendment and table a new one.
The Chair: Thank you. Senator Bellemare.
Senator Bellemare: Thank you very much. I move:
That Bill S-244 be amended in clause 4, on page 4, by adding the following after line 37:
“(6.1) The Council must hold at least three meetings every year.”.
[Translation]
“The Council must hold at least three meetings every year.”
[English]
That’s it.
The Chair: Thank you, Senator Bellemare. Are there any questions?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Yes.
The Chair: The motion is carried. Shall clause 4, as amended, carry?
Hon. Senators: Agreed
The Chair: Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical grammatical or other non-substantive changes as a result of the amendments adopted by the committee in both official languages, including updating cross-referencing and renumbering of provisions?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: Is it agreed, colleagues, that I report this bill, as amended, without observations, to the Senate in both official languages?
Hon. Senators: Yes.
The Chair: Thank you, honourable senators. We will now proceed to holding a short, in camera meeting to discuss future business of the committee.
Ms. Nandy, Mr. Côté, thank you for being with us today.
(The committee continued in camera.)