Proceedings of the Standing Senate Committee on
Banking, Trade and Commerce

Issue 55 - Evidence, June 15, 1999

OTTAWA, Tuesday, June 15, 1999

The Standing Senate Committee on Banking, Trade and Commerce, to which was referred Bill C-78, to establish the Public Sector Pension Investment Board, to amend the Public Service Superannuation Act, the Canadian Forces Superannuation Act, the Royal Canadian Mounted Police Superannuation Act, the Defence Services Pension Continuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Members of Parliament Retiring Allowances Act and the Canada Post Corporation Act and to make a consequential amendment to another Act, met this day at 9:30 a.m. to give clause-by-clause consideration to the bill.

Senator Michael Kirby (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, let me just summarize what has transpired since last Thursday. Senator Tkachuk will then speak and we can then move to the document that has been circulated.

Following the meeting last week, I had a discussion with the President of the Treasury Board, the essence of which is reflected in a letter that I received yesterday which will be appended to the report of the committee. The letter says that there is a written undertaking on behalf of the government to enter immediately, if the bill is passed, into negotiations with the various employee organizations. I say "employee organizations" because it is not just the unions but also the RCMP and the defence workers and so on. They would work to reach a conclusion on the joint management, risk-sharing arrangement that both the union leaders and the minister indicated in testimony last week they were prepared to accept.

The reason for getting an undertaking in writing from the government and not merely from the minister is that the letter is deliberately phrased in a way that refers to the position, not the individual. Therefore, if there were a cabinet shuffle, the commitment would be binding on the future minister who might be in that portfolio.

Also attached is a reply letter from me indicating that the committee would call the President of the Treasury Board before the committee before the end of the year to report on the state of negotiations. I will be sending similar letters to the various union presidents and organizers who appeared before us so that they, too, will feel perfectly free to come to this committee in the future if they feel that the negotiations are not going well.

There is also attached a set of observations based on the discussions we, Senator Tkachuk and our staff had. Those observations summarize some of the concerns and conflicting viewpoints of members of the committee during those discussions. The so-called observations document has been reviewed in detail by Senator Tkachuk and myself. We are happy with it. We think it accurately reflects the views of our individual caucuses in the sense of the individual members of the committee.

As has historically been consistent with this committee, in cases where the members of the committee have disagreeing viewpoints, we do not state those in terms of "Liberal members think --" and "Conservative members think --" We use the terms "minority" and "majority," because on occasions in the past there have been two or three members on both sides of the table who agreed and members on both sides of the table who disagreed.

I am happy to take any questions on that, although I should like to ask Senator Tkachuk to speak first. I would hope that we could fairly expeditiously reach an agreement to proceed, therefore, to report the bill back to the Senate without amendment but with these observations, the minister's letter and the undertaking from the government and our undertaking to have the minister and the union leaders back any time they wish to return to deal with the negotiations issue.

Senator Tkachuk: Members of the committee, putting together the appendix to the bill was a very positive thing we did. In order that there be no misunderstanding, members on our side do not approve of the bill but believe that these paragraphs within the appendix reflect some of our major concerns both on the process side and on the actual text of the bill.

Mr. Chairman, I have one addition that I should like to bring forward. As you know, Senator Kelleher has made some fairly strong arguments in committee on the six-and-five program. Senator Kelleher believes that there must be some opportunity for and provisions for a catch-up provision on this.

I thought that it would probably be covered under the first recommendation, which was that "the Treasury Board immediately resume --" on the bottom of page 4. However, Senator Kelleher does not feel that that wording quite makes it clear. I do not know if that small change would meet with the approval of other members.

The Chairman: I am happy to include that item. It has always been the history of this committee that if members have observations that they would like to have added I have always been more than willing to do that.

Our clerk and our researcher indicate that adding a paragraph between now and 2:00 o'clock would not be a big problem.

Senator Kelleher, for the record, perhaps you could just take two minutes to summarize your position.

Senator Kelleher: You may proceed to summarize the issue. The minister said he would undertake to review this. I am not saying it must be done.

The Chairman: For the benefit of all honourable senators, when the six-and-five program was put in, the private sector person who ran the six-and-five program was Ian Sinclair. Senator Sinclair was subsequently chairman of this committee after he was appointed to the Senate.

In a number of subsequent private sector cases, the increases that had been foregone were restored purely for pension purposes. That did not happen in the case of the Public Service Superannuation Act. Therefore, the point that Senator Kelleher made was not to be against the six-and-five program, but was merely to say that for pension purposes, those increases should have been restored prior to people receiving their pension. I am happy to make that comment.

Senator Kelleher: As I understand it, the people immediately before and immediately after received their pension and there was this group that were sort of left hanging there.

The Chairman: I have no problem including that in the appendix. That issue was raised in a couple of the briefs and you raised it with the minister. If we can add a paragraph to that effect before the end of the day, that would be fine.

Senator Oliver: I have a general comment with which Senator Tkachuk does not agree.

When I read this document for the first time, I said, "Look, it is a wonderful document, but what it is really saying to the Canadian people is that we, this committee, heard the witnesses and the minister and we have some serious concerns about this piece of legislation. In fact, some of those concerns are so fundamental we feel that the public policy that it espouses is flawed." The traditional parliamentary thing to do in such a case is to amend it and send it back to the elected body and say, "You better redo this."

One of our recommendations reads as follows:

...the federal government give serious consideration to the extension of benefits in situations where economic dependence exists.

That says that we feel that your public policy drafting is wrong: it is too narrow. If you are going to move in this direction, why do you not open it up to include all people?

It seems to me that this committee is waffling and is saying, "We better be good to the government and the Canadian people and we will put some recommendations in and hope that something good comes of it." On that basis, I feel that we should be more tough and strong, and say that this is not good public policy, this bill is flawed in several material ways, but we are not prepared to amend it.

The Chairman: I understand your point of view. Let me deal with that specific comment. I reacted to it in quite a different way. My reaction was that we are saying in the comments, "Look, the conjugal rights clause is a first step."

Senator Oliver: That is not the only one, by the way.

The Chairman: I understand that. However, it is a first step, although it should not be the last step. The far more serious step is the more serious debate of dependence. We are really saying that this is a first step, not a definitive step, and we want the government to go to work on it.

There was an exchange between Senator Kroft and one of the witnesses on that particular point. I cannot remember who it was. However, it was clear that nobody knew exactly how to describe the problem. We all understood what the problem was. We were all sympathetic to solving the problem.

I do not have any difficulty taking the position that we have done a first step, but that we will be leaning on the government both in these recommendations and in the future to continue down that road. That is essentially the position we took on the governance question.

The dilemma I see that we had on the governance question was that the governance issue and the surplus issue were both in the same bill when they are two totally, utterly separate animals. The government and the unions were, as I understand from both of them, very close to agreement on the governance issue but could not settle on the surplus issue. I understand it would be very difficult for any union to agree on the surplus question.

In a sense, life would have been simpler for everyone if we had had one bill that dealt solely with the surplus question and another that dealt with how you go from here on. However, that was not the case.

Senator Tkachuk, myself and others attempted to indicate that we were not abandoning the field by saying that we would be looking at this issue again in the fall. By that point, the surplus issue will be off the table and we will be dealing with issues that bother many of us, including the management issue and some of the other elements.

Senator Cools: Are we dealing with this particular paragraph? I took Senator Oliver's statements to be of wider application. However, I am not a member of this committee. How do you normally approach approving this kind of document? Do you do it section by section, or is it just a free-for-all, and anyone can speak to any part at any time?

The Chairman: Because the regular members of the committee normally have had an opportunity to go through the document, I was planning to entertain a motion to approve the bill with these comments attached to it.

Senator Cools: I should like to say a few words about one section. I was reviewing the document at page 14. If the committee would consider it, I would suggest adding a few words that could improve the clarity of the document.

The title on page 14 is "Survivor Benefits for Conjugal Partners of the Same Sex." It seems to me that the testimony that was put before us was that there is an enormous question about whether or not a relationship between partners of the same sex is a conjugal relationship. That was the essential question. It seems to me that it begs and defeats the witnesses to some extent if you employ the term "conjugal partners." Perhaps that could be replaced by "sexual partners."

The Chairman: I am sorry, I cannot do that. The bill specifically uses the term "conjugal partners." It is critical in my view that we use the language in the bill.

Senator Cools: No, the bill does not. If you look to the bill again, it says "a conjugal relationship, it shall be interpreted --" That is what is being questioned.

The Chairman: I am happy to leave the text the way it is. I do not know how other members feel. I am happy to leave the text the way it is, since it has been reviewed by many of us.

Senator Grafstein: Is the objection to the word "partners"?

Senator Cools: The purpose of this report is to bring forth the concerns of committee members and witnesses. The witnesses clearly said that the evidence, the jurisprudence and the definition were not clear that "same sex" meant "conjugal" and that the bill was asserting that. That fact was being questioned.

If one wishes to say it, say it right out; say "homosexual partners" or whatever. That was the question that was being raised.

Senator Oliver: I think, as I read this paragraph, that it does reflect what this committee heard. That is all we are really trying to do.

Senator Kroft: Mr. Chairman, the conclusion I came to and what I thought was the consensus of the committee members is that this is not the place where we will resolve this issue. We are limited to dealing with and commenting on the language of the bill before us.

We have made it very clear that we have discomfort with it. It will take a broader forum and a broader consideration in regard to federal legislation to deal with this issue. To go beyond that, we will begin to do what we say we do not want to do, which is to deal with it.

I would propose that we proceed with the report the way it is drafted.

The Chairman: I am happy to entertain a motion that would essentially say that we report the bill without amendment, with these comments attached and on the understanding that there is division. It is not a unanimous report of the committee; there is division within the committee, but I am happy to report that. Do I have such a motion?

Senator Austin: I so move.

The Chairman: Is it agreed, honourable senators?

Hon. Senators: Agreed.

The Chairman: I would propose to do that this afternoon. It is my understanding that third reading would then take place tomorrow.

The committee continued in camera.