Honourable senators, let me begin by thanking you for convening on such short notice and on a Friday to deal with a matter that is of significant urgency to the public interest. I know that nobody in this chamber really wants to be here today, and believe me, it’s with significant regret and disappointment that I rise to speak as the sponsor of Bill C-29, An Act to provide for the resumption and continuation of operations at the Port of Montreal.
From the outset, let me be clear, this legislation is an absolute last resort, which, as the minister has said and I will repeat, I can assure you this government does not take lightly. I know that the 255 members of Parliament who voted to approve this legislation in the wee hours of Thursday did not do so with any great sense of gratification. However, the dispute at the Port of Montreal is at an impasse and has escalated to the point that this legislation has become essential to safeguard the public interest.
As you know, the operations at the Port of Montreal were reduced on April 13 due to a partial work stoppage and the situation has since become a full work stoppage as of April 26, effectively paralyzing the port, as we have heard. The two parties in question, the Syndicat des débardeurs du port de Montréal — local 375 of the Canadian Union of Public Employees — and the Maritime Employers Association have been negotiating since September 2018, when their current round of collective bargaining began. Unfortunately, up to this point, they have not been able to reach an agreement, even after repeated attempts by the Government of Canada through its mediators to help both parties find common ground. With no agreement in sight, there is also no end to this work stoppage in sight.
I believe deeply in freedom of association and the collective bargaining process, but I’m also a senator representing the province of Quebec and a Montrealer. My remarks here today reflect both of these realities.
As such, unfortunately, I realize that there is no viable alternative to passing this bill. We have reached the point where it would be irresponsible for the federal government not to act.
Honourable senators, let me begin by briefly outlining the steps that the federal government has taken to date in order to support the parties in reaching a resolution.
The parties began bargaining in September 2018. The following month, the Federal Mediation and Conciliation Service became involved, first through conciliation and then in mediation beginning in December 2018.
On July 2, 2020, the union commenced a partial strike with the support of 99% of its membership. This happened less than a month after the Canadian Industrial Relations Board, or CIRB, released its decision regarding maintenance of activities.
While the question of what, if any, services would need to be maintained in the event of a work stoppage was before the board, neither party was able to engage in job action. Ultimately, the CIRB found that the parties did not need to maintain any activities in the event of a work stoppage beyond their statutory obligation under the Canada Labour Code to continue to service grain vessels. However, they did acknowledge the union’s commitment to continue servicing two vessels that supply Newfoundland and Labrador.
Upon the release of that decision, the parties were in a position to legally begin a strike or lockout, provided they gave the required 72 hours’ notice. Four work stoppages followed that summer, each one increasing in duration and impact, ending in an unlimited strike that started on August 10, 2020.
Eleven days later, the parties came to an agreement on a seven-month truce period during which they would keep bargaining and stop all work stoppages. That truce ended, as we know, on March 21, 2021.
Esteemed colleagues, throughout the truce and ever since it ended, the parties have received significant ongoing support from federal mediators.
Even so, on April 13, the employer changed the working conditions, and the union began partial strike action. The Port of Montreal stated that the partial work stoppage reduced its capacity by 30%. That amount does not take into account the fact that shippers prudently reduced the amount of goods they sent to the port because they were concerned their goods could be affected by the dispute.
The situation has since escalated. The employer informed the union that it would apply collective agreement provisions to impose a specific work schedule requiring workers to work their entire shift. The union ceased all work at the port as of 7 a.m., April 26.
To put things in perspective, the Port of Montreal is Canada’s second-largest container terminal. Every year, it handles 1.6 million 20-foot equivalent units and 35 million tonnes of cargo, representing about $40 billion worth of goods.
The work stoppage we’re seeing is causing harm now and has the potential to cause severe and lasting damage to the Canadian economy. Of note, many of you would have received a written declaration on behalf of the Chamber of Commerce of Metropolitan Montreal, CCMM, signed by hundreds of signatories representing a cross-section of entrepreneurs and small businesses that depend upon supply chains that link them to the Port of Montreal. The declaration of note states:
It is essential that the fluidity of the supply chain be maintained. The survival of many businesses depends upon it.
The situation is affecting more than 19,000 direct and indirect jobs associated with transit through the Port of Montreal, including in the rail and trucking industries. Stakeholders have also indicated that the stoppage is affecting the movement of critical goods, which could result in shortages or delays in care or treatment for Canadians — for example, ingredients for drug manufacturing — and certain products necessary for specialized medical treatment such as dialysis. Medtech Canada, a national association representing the medical technology industry, has indicated that the work stoppage could jeopardize the supply of dialysis solution across Canada.
Although the union has given verbal assurances that it will continue to load and unload medically urgent supplies, the lack of fluidity at the port has meant that critical containers have gone unmoved. Deputy Minister of Transport Michael Keenan testified to the Committee of the Whole that there are 15 containers with critical cargo sitting idle. He had been advised that 5 of the 15 contain priority COVID-related equipment, while the rest contain pharmaceutical products and medical equipment.
Deputy Minister Keenan further testified that over 100 containers with critical cargo were aboard four ships anchored and waiting for the port to reopen. Given the logistical challenges involved in attempting to dock these vessels only to unload specific containers, these containers are simply not expected to be moved until operations resume in the Port of Montreal.
In addition, several agri-food stakeholders have indicated the work stoppage is damaging their ability to ship containerized agricultural products and causing harm to Canada’s reputation as a reliable exporter of agricultural products. This also poses challenges when it comes to food security, as producers face challenges receiving key inputs such as fertilizer. Karen Proud, President and CEO of Fertilizer Canada, which represents a significant number of manufacturers and distributors in the fertilizer industry, stated:
As Canada continues to fight COVID-19, our citizens need a food supply that they can count on. Any strike will mean that essential fertilizer products cannot reach farmers in Eastern and Atlantic Canada. This strike threatens food security at a critical juncture.
To that end, some food producers also indicated that they have rerouted their exports to other Canadian and U.S. ports prior to the beginning of the work stoppage. Deputy Minister of Transport Keenan testified that approximately 10% of the volume at the Port of Montreal had been diverted pre-emptively to other ports before this work stoppage but, frankly, many shippers are stuck because of capacity limits at other ports.
Stakeholders from various industries, including agriculture and agri-food, forestry, retail trade, manufacturing, transportation, shipping and logistics, have all expressed serious concerns regarding the potential impact of the work stoppage. Some of these stakeholders include the Canadian Federation of Independent Business, Manufacturiers et Exportateurs du Québec, the Canadian Association of Importers & Exporters, the Canadian Produce Marketing Association, the PEI Federation of Agriculture, Soy Canada and the Ontario Bean Growers, to name a few.
Examples of these concerns relayed to the government include manufacturers, including drug and automobile producers, facing an interruption or shutdown of production due to limited supplies; food wholesalers facing spoilage and degradation of products; agricultural producers facing a shortage of fertilizers; Canadian suppliers facing loss of business to “more reliable” U.S. suppliers; and the construction sector facing a shortage of material as activity gears up over the spring.
In fact, economic modelling has projected that the strike has generated up to $40 million to $100 million per week in damages to the Canadian economy.
The strike and the resulting backlog should lead to reduced hours or layoffs for workers and businesses that are unable to reroute crucial production inputs through other ports. For example, the owner of a sugar refinery said that he may have to suspend operations because he can’t get any raw sugar through the port, and 215 jobs could be impacted.
Stakeholders in the agri-food industry also warned that short-term layoffs are to be expected as the transportation system experiences delays and the agricultural supply chain is broken.
We also know that the other ports on the East Coast of Canada have struggled with the higher volumes caused by shipments being redirected to them because of pressure tactics at the Port of Montreal in the summer of 2020, and that the ports on the East Coast of the United States are already extremely busy.
The reality is that international and regional supply chains already have very little flexibility. Finding efficient alternatives is almost impossible.
Honourable senators, the government believes that it is time to take decisive action.
That being said, let me make one thing perfectly clear. We heard today from representatives of the union and the employer, which gave us an opportunity to get a better grasp on the issues at the port. However, colleagues, while studying this bill, there is something that is important to keep in mind. To paraphrase Senator Lankin, for the government at least, it is not about picking a side. It is not about finding out who did what and when, who may be right and who may be wrong. It is not about passing judgment on the quality of the negotiations that have taken place up to now.
As Senator Harder reminded this chamber during our debates on Bill C-89, together with labour and management, the government constitutes the third party in the tripartite relationship of collective bargaining. The government’s role in this framework is to safeguard the fairness of collective bargaining but also to balance the form of that process with other rights and interests vital to good governance.
With respect to the issues that have been raised concerning collective bargaining, Bill C-29 would provide that the collective agreement that applied from 2013 to 2018 would be extended until a new collective agreement comes into force. I would remind senators that this collective agreement is one that had been successfully negotiated between the same parties and had been welcomed very positively in 2013. The parties would be required to abide by all terms of the extended collective agreement until the day that a new collective agreement comes into effect between the parties.
No unilateral modifications made by either side would stand upon passage of Bill C-29. Terms that were in the collective agreement that expired on December 31, 2018, would now be in effect.
Ultimately, colleagues, the government is proposing Bill C-29 as a responsible and balanced public policy response to an objectively harmful state of affairs at the Port of Montreal. With Bill C-29, we are talking about balancing the right of longshoremen to strike with a range of other vital interests, including those of the thousands that find themselves in the crossfire, like the businesses in the supply chain that will suffer significant direct or indirect costs associated with this dispute, many of whom have already been harmed by 13 months of a pandemic that has already cost countless Canadians their livelihoods. To be blunt, the government has to consider the jobs that won’t be protected if the shutdown is allowed to continue, because those jobs will be lost.
Honourable senators, the necessity of Bill C-29 is acknowledged by all levels of government most directly affected by the dispute, including the Government of Quebec, the Government of Ontario and the City of Montreal, which happens to be led by one of the most progressive mayors in the city’s history.
All of these levels of government are led by political parties of very different stripes and ideologies. However, they all share a common responsibility to govern, which at times requires making difficult and ideologically counterintuitive decisions for the broader interests of the region under their respective jurisdictions.
While back-to-work legislation should only be used as a last resort, for the parties to the dispute, Bill C-29 represents an impartial, neutral and effective dispute resolution mechanism that is consistent with the requirements of the most recent developments in Canadian labour law.
Honourable senators, this legislation was drafted to ensure compliance with the most up-to-date teachings of the courts in respect to the Canadian Charter of Rights and Freedoms. With your indulgence, I will elaborate further on this point and provide a more complete Charter analysis to complement the Charter Statement provided by the Minister of Justice.
As honourable senators know, and it is indicated in the Charter Statement, legislating the employees of the port back to work potentially engages the freedom of expression and the freedom of association, which are protected under sections 2(b) and 2(d) of the Charter respectively. But to engage the Charter is not necessarily to infringe the Charter.
As we know, the rights set out in the Charter are not absolute. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms, but where such limitations are demonstrably justified in a free and democratic society, the Charter is not infringed.
Honourable senators, it’s the position of this government that Bill C-29 does not infringe the Canadian Charter of Rights and Freedoms.
Let us begin with the right to freedom of association protected by section 2(d) of the Charter. The freedom of association encompasses the right to a meaningful process of collective bargaining. This includes the right to strike when good faith negotiations break down. It follows that government action that substantially interferes with such a process will constitute a limit on the freedom of association and will require justification under section 1 of the Charter.
But the question of whether a legislative intervention like the bill we are considering today is a substantial interference with the collective bargaining process depends on the factual context of a particular case, and I will get to that in a moment.
But it is important, honourable senators, to recognize that the right to strike under the Charter is a relatively new legal development. Previously, in 1987, the Supreme Court of Canada decided that the right to strike was not protected. That changed in 2015, with the Supreme Court decision in Saskatchewan Federation of Labour v. Saskatchewan, to which reference has already been made, in which the Supreme Court of Canada reversed the previous jurisprudence and endorsed the right to strike as an aspect of a right to a meaningful process of collective bargaining under section 2(d).
The recent vintage of the constitutional right to strike is important for our purposes because it means that there is little jurisprudence defining the scope of the right. In fact, there are only two cases in which the constitutionality of back-to-work legislation has been considered since 2015. One is the 2016 decision of the Ontario Superior Court in Canadian Union of Postal Workers v. Her Majesty in Right of Canada. The other is the very recent decision of the Quebec Court of Appeal in Procureur général du Québec c. Les avocats et notaires de l’État Québécois, dated April 7, 2021.
The first of these cases, the postal workers, addressed back-to-work legislation enacted by Parliament in relation to Canada Post in 2011. The second case addressed back-to-work legislation enacted by the Quebec government in relation to its lawyers and notaries in 2015.
I will say a few words about both of these cases, but before I do, it is worth reminding colleagues that each of these decisions deals with laws that differ significantly from the bill before us today, and that arose in a factual context different from the one surrounding us today.
It is also important to note that Saskatchewan Federation of Labour dealt with essential services legislation, which entirely removed the right to strike for a wide cross-section of employees and which did not provide for a neutral dispute resolution process, such as arbitration, for those employees.
That context is different from the one we are dealing with today. The employees of the Port of Montreal have the right to strike, and they have exercised that right on four different occasions, including partial work stoppages and two general strikes.
Although Bill C-29 is a way to legislate an end to the strike, it also includes a neutral dispute resolution process, which I will talk about shortly.
In light of the limited jurisprudence in this area and the fact that Saskatchewan Federation of Labour involved a very different type of legislation, it should not be assumed that the bill we are considering today limits the freedom of association as understood by the courts under the Charter.
Bill C-29 is drafted differently than the back-to-work legislation that was considered by the Ontario and Quebec courts I mentioned a moment ago. Indeed, Bill C-29 is based on the principles elucidated by the Supreme Court of Canada in Saskatchewan Federation of Labour to ensure its conformity with the Charter.
Colleagues, although the government’s position is that the bill does not substantially interfere with the collective bargaining process, it must be acknowledged that a court could come to the opposite conclusion — that the bill constitutes a limit on section 2(d) rights and must, as such, be justified under section 1.
But before turning to the considerations that support the constitutionality of Bill C-29 under section 1 of the Charter, the government also understands that the freedom of association is not the only Charter right that is potentially in play. As set out in the Charter Statement, Bill C-29 also potentially engages freedom of expression under section 2(b) of the Charter. It is possible in this respect that the act of collectively withdrawing labour is itself a protected form of expression.
Indeed, while some lower courts have come to this conclusion, others have expressed reservations about including the act of striking under freedom of expression. Indeed, the Supreme Court of Canada declined to rule on this issue in Saskatchewan Federation of Labour, so the question remains an open one.
Honourable senators, as I said, it is well-settled law that Parliament may enact laws that limit freedoms if those laws are justifiable in a free and democratic society. In the government’s view, Bill C-29 would be found to respect the Charter.
The test under section 1 of the Charter asks first whether the impugned law serves a pressing and substantial objective. If it does, the analysis moves on to consider whether the law strikes a reasonable balance between the legislative objective and the impact on affected rights by considering whether there is a rational connection between the law and the objective, whether the measure is minimally impairing and whether the limitation is proportionate to the positive effects associated with the legislative goal. I will address each of these elements briefly in turn.
The objective of Bill C-29 is to stem the disruptive impact of the strike and to prevent ongoing and significant economic harms to Canadian businesses, their employees and those who depend on their services.
In both of the cases considering back-to-work legislation since the Saskatchewan Federation of Labour decision, the courts had no difficulty accepting that the legislation served a pressing and substantial objective.
In light of the significant impact of the continuing work stoppage, which I discussed earlier and about which we heard a great deal in the Committee of the Whole, the government is confident this would be accepted as a pressing and substantial objective.
The first step of the section 1 proportionality test asks whether the limit on the right is rationally connected to the government’s objective.
In the 2016 Canada Post Corporation decision, the Ontario court had no difficulty concluding that the legislation passed the rationale connection stage of the analysis. Legislating Canada Post employees back to work was clearly linked with the government’s objective of avoiding economic harms associated with the strike.
Similarly, in the recent decision concerning Quebec government lawyers and notaries, the Quebec Court of Appeal readily concluded that the provincial back-to-work legislation was rationally connected to the objective of ensuring the continuity of services.
With regard to Bill C-29, the proposed prohibitions on strikes and lockouts, while continuing to promote a negotiated resolution of the dispute, is rationally connected to the objective of stemming the disruptive impact of the strike and preventing the ongoing and significant economic harms associated with it.
At the second stage of the proportionality analysis, the question is whether the law limits the right or freedom no more than reasonably necessary to achieve the objective. It is at this stage of the analysis that previous back-to-work legislation failed before Quebec and Ontario courts.
Each of those courts based their analyses on the following principle stated by the Supreme Court of Canada in the Saskatchewan Federation of Labour decision. Justice Abella, writing for the majority of the Supreme Court, said at paragraph :
Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Where essential services legislation provides such an alternative mechanism, it would more likely be justified under s. 1 of the Charter. In my view, the failure of any such mechanism in the PSESA is what ultimately renders its limitations constitutionally impermissible.
The legislation at issue in the recent Quebec Court of Appeal decision ordered the union members back to work and imposed a time-limited negotiation and mediation process. If the parties were unable to reach an agreement within approximately three months, the former collective agreement would be renewed for approximately five years, except for the salaries, bonuses and allowances which would be fixed by the legislation.
The Quebec legislation did not provide for an arbitration process. If negotiation and mediation were unsuccessful, the government employer would set the terms of employment through legislation. The Quebec Court of Appeal held that the legislation did not minimally impair the freedom of association because it failed to provide for a sufficiently neutral dispute resolution mechanism.
The Court of Appeal states at paragraph 112:
In exercising this power that, it should be noted, no other employer has, the government, and the legislature, must also and at all times respect the fundamental freedoms enshrined in the Constitution, including the freedom of association. Since Saskatchewan Federation, this freedom has become more prominent with the addition of a new attribute. This attribute is not the right to strike as such, since the act, no one would be surprised to hear, will continue to tightly control the right to strike according to the old, yet still dominant, logic of the Wagner Act. Rather, in the context of collective bargaining, this attribute is the right of union members exercising their freedom of association and who see their right to strike suppressed by a law, whether or not it is a special law, to simultaneously obtain from the legislator, in exchange for that suppression, some form of dispute resolution mechanism. The Supreme Court explicitly adds that this mechanism must be meaningful and effective. I emphasize these words because, in my view, they alone are the cornerstones of the appeals in question. This is what the Constitution requires the legislator to do for union members in a case such as this one.
Building on the teachings of the Supreme Court in Saskatchewan Federation of Labour, the Quebec Court of Appeal noted that a genuine and effective dispute resolution mechanism necessarily entailed an element of independence and impartiality explicitly pointing to binding arbitration as one such process. Paragraph 116 of the judgment states:
. . . a genuine and effective dispute resolution mechanism necessarily entails an element of independence or impartiality that, in any event, cannot occur in a process where one party is in a position, in the final analysis, to dictate conditions to the other party. Arbitration of a first collective agreement under section 93.1 and subsequent sections of the Labour Code is one example of such a mechanism and is a real improvement on the traditional Wagner Act model.
Honourable senators, the bill we are considering today is markedly different than the bill considered by either of the courts to which I referred. Simply put, Bill C-29 provides for a neutral dispute resolution mechanism that follows the Supreme Court of Canada’s guidance in Saskatchewan Federation of Labour. Bill C-29 sets out a neutral process for selecting an arbitrator. Both parties contribute to the list of candidates. If there is a person in common, the minister must appoint that person. It also provides for the arbitration of all issues on which the parties have been unable to agree.
Finally, there is nothing in the bill that would tip the scales in terms of predisposing the arbitrator to favour one particular outcome or that would otherwise upset the balance of power between the parties.
In the Canada Post case, the Ontario Superior Court identified a number of concerns leading to its conclusion that the legislation in that case was not minimally impairing. As I mentioned earlier, the legislation at issue in that case was drafted prior to and without the benefit of the Supreme Court’s guidance in Saskatchewan Federation of Labour.
First, in the Ontario case, the legislation fixed the wage increases and the duration of the agreement. The courts said taking these items off the table was fatal to the constitutionality of the bill. In contrast, no such measure is contemplated in Bill C-29. This first concern is therefore inapplicable to the bill before us today.
Second, the legislation authorized the minister to appoint an arbitrator without any input from the union. As I just mentioned, this is not the case with Bill C-29.
The third concern outlined in the Ontario Court’s reason is that the legislation did not permit employees to continue to express themselves through site-specific strike activity.
Now, this concern, colleagues, is admittedly not addressed in Bill C-29. However, with the greatest of respect to the Ontario Superior Court, that doesn’t mean that another court would necessarily take the same approach in a future case. The suggestion that arbitration and striking should be permitted or indeed required to take place at the same time, in fact, is contrary to the basic principle that these are two mutually exclusive ways of resolving a bargaining dispute.
In Saskatchewan Federation of Labour, the Supreme Court recognized as much, indicating that arbitration was an appropriate substitute for the right to strike on the part of essential workers.
It should also be noted that Bill C-29 privileges a voluntary resolution of the dispute by requiring the mediator or arbitrator to first endeavour to bring about a negotiated settlement. Moreover, as noted in the Charter statement, Bill C-29 was introduced only following unsuccessful efforts to bring the collective bargaining process, which had been ongoing since September 2018, to a satisfactory conclusion for all parties.
For all these reasons, Bill C-29 differs significantly from the legislation that was before the Ontario and Quebec courts in its impact on the collective bargaining process and the right to strike. It incorporates the teachings of the Supreme Court in the Saskatchewan Federation of Labour case to bring it into conformity with the Charter.
The final step in the Section 1 analysis asks whether the negative effects on Charter rights are outweighed by the beneficial impacts of the law.
What I will say is simply this: The government’s position is that permitting the strike to continue would cause significant and long-lasting harm to Canadian businesses, individuals and the economy as a whole. The benefits of the legislation in preventing and mitigating these harms outweigh the impact on employees’ rights. This is particularly so given that the employees have been collectively bargaining for over two and a half years to no avail and given that the employees will have access to a fair and neutral dispute-resolution process.
For all these reasons, the government is confident that Bill C-29 is compliant with the Charter of Rights and Freedoms.
As you have heard, colleagues — and I’ll repeat — the federal government recognizes that negotiated agreements are always the best solution. Indeed, some would even criticize the government — and we heard it in this chamber today — for having held out hope this long for the parties to resolve their differences and to reach a new collective agreement.
However, as I clearly stated, we must find a way to move forward. Canadians and Canadian businesses are counting on us.
Ultimately, from a governance point of view, the Government of Canada believes that Bill C-29 was needed to protect the public interest.
The governments of Quebec and Ontario, the City of Montreal, the House of Commons and countless stakeholders have all been clear: it is simply not viable or acceptable for the Port of Montreal to remain closed indefinitely in the midst of a pandemic that has already caused significant harm to our economy and our people.
On this legislation, together with the Government of Canada, they are speaking with one voice. Bill C-29 has become the only responsible way forward.
Honourable senators, I hope that you will join together with them in approving this step forward, one that is as regrettable as it is in fact necessary. Thank you very much.
Honourable senators, I rise today at third reading stage of Bill C-29, An Act to provide for the resumption and continuation of operations at the Port of Montreal.
The collective agreement for longshore workers at the Port of Montreal expired in December 2018. Nearly two and a half years later, we are at an impasse in the negotiations between the parties and facing an economic disaster caused by a general strike by the longshore workers of the Port of Montreal. After dragging its feet once again on this file, which is a key file if ever there is one, the government has been forced to intervene by passing special legislation to settle this dispute that has countless ramifications for the economy of Montreal, Quebec and Canada.
Let’s not forget that in August 2020, a 19-day strike paralyzed operations at the Port of Montreal. That strike alone led to $600 million in losses. I would think that should have set off alarm bells that the government should have heard, and it should have immediately shown stronger leadership.
Even before last summer’s strike, the government should have taken responsibility to ensure that the parties could agree on a new collective agreement.
The Canada Labour Code is clear. Subsection 105(1) says:
The Minister, on request or on the Minister’s own initiative, may, where the Minister deems it expedient, at any time appoint a mediator to confer with the parties to a dispute or difference and endeavour to assist them in settling the dispute or difference.
Section 107 then states:
The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the [Canada Industrial Relations Board] or direct the Board to do such things as the Minister deems necessary.
Given the extent of the government’s powers, the fact that we are here tonight to debate special back-to-work legislation two and a half years after the Port of Montreal workers’ collective agreement expired is beyond surprising; it is discouraging.
The government will say that its ability to act on this file was limited by the pandemic. Nothing could be further from the truth. Several mediators have been appointed by the government to support the parties throughout the negotiations, but after more than 90 meetings with support from government-appointed mediators, there is still no progress and we are considering special legislation. How could that happen? That is very troubling.
On the one hand, union members are exercising their right to strike because they want better work schedules so they can have better work-life balance. On April 23, an article by Stéphane Bordeleau was published on Radio-Canada’s website. He wrote:
. . . union president Martin Lapierre explained that the work stoppage was necessary following the [Maritime Employers Association’s] decision to unilaterally change work schedules . . . . Unions viewed the decision as an act of provocation . . . .
The right to disconnect and issues around disciplinary measures are other important points of contention for the union.
On the other hand, as we know, activities at all Canadian ports, especially at the Port of Montreal, which is the second-largest in the country, are strategic and vital. They are an essential link in a logistical chain that is crucial to our economy, especially when our economy is struggling, as it is now because of the COVID-19 crisis.
Here are a few figures regarding Montreal’s port activities. Many of the following statistics are from the Canada Industrial Relations Board’s June 8, 2020, decision, which is mentioned in the Charter statement on Bill C-29. With 20 kilometres of shoreline, the Port of Montreal supports over 19,000 direct and indirect jobs per year. A total of 40 million tonnes of merchandise transit through the port at an estimated value of $100 billion a year. That is huge. That represents over $2.5 billion per year in economic spinoffs because 90% of Quebec’s and Ontario’s exporters and importers use this entry and exit point to support their business activities. I would like to add the following, by quoting paragraph 21 of the June 8, 2020, decision:
In 2018, 1.7 million containers passed through the Port of Montréal. Some 2,000 vessels per year dock at the Port of Montréal, and up to 2,500 trucks drive to the Port every day.
The Port of Montreal is one of the five biggest ports on the east coast of North America and the biggest port in eastern Canada. With connections to over 140 countries, it represents a North American point of entry for goods from Europe and also more and more from Asia.
Medical equipment used in the context of the current health crisis is shipped in containers, but other essential goods are of course also shipped through the port. As stated in paragraph 22 of the Canada Industrial Relations Board decision of June 8, 2020:
The goods that pass through the Port of Montréal include perishable goods and dangerous goods, pharmaceutical products, fire protection and public safety equipment, medicinal plants, pesticides, chemicals . . . .
Senator Carignan, I’m sorry, but have to interrupt you. We will come back to you for the balance of your time when the sitting resumes at 7 p.m.
Honourable senators, it is now six o’clock, and pursuant to rule 3-3(1) and the orders adopted on October 27, 2020, and December 17, 2020, I’m obliged to leave the chair until seven o’clock unless there is leave that the sitting continue. If you wish the sitting to be suspended now, please say, “suspend.”
Before the break, I was reading a quote from the Canada Industrial Relations Board decision about the goods that pass through the Port of Montreal:
The goods that pass through the Port of Montréal include perishable goods and dangerous goods, pharmaceutical products, fire protection and public safety equipment, medicinal plants, pesticides, chemicals, foodstuffs, fertilizers, ores and explosives . . . .
However, building materials also pass through the Port of Montreal. As you know, a severe housing crisis is raging. Numerous housing construction projects are under way, with many more to come. We are already seeing a sharp rise in building material costs. If the materials become even harder to secure due to a work stoppage at the Port of Montreal, the costs will rise even more, and that will directly affect Canadians’ ability to find housing.
I would like to quote paragraph 25 of the June 2020 decision of the Canada Industrial Relations Board and remind honourable senators that:
. . . the Port serves 110 million people and that many residents are supplied with goods essential for their health and safety.
I also want to mention that 6,300 businesses use the Port of Montreal’s services and that the average value of the goods in a single container is about $50,000, which is equivalent to the average yearly salary in Quebec.
We are also talking about $250 million in tax revenue for governments, and the St. Lawrence-Great Lakes trade corridor is a vital multi-modal corridor for North American trade.
The Port of Montreal plays a crucial role in our economy. It is absolutely critical, and any holdup severely impacts not only Quebec and Ontario, but all of Canada and the northeastern United States. Multiple commodities, often essential ones, transit through the Port of Montreal.
The Port of Montreal is a major economic pillar for our country. The uncertainty caused by this labour dispute will have long-term consequences. The shifting of port operations to other East Coast ports in Canada or the U.S. is a prime example. Economic stakeholders associated with the Port of Montreal are worried about Montreal port operations eventually being diverted to more stable ports that are not plagued by long-running labour disputes. In fact, the Port of Montreal saw a 6% decline in freight traffic at terminal 1 in 2021. It also saw an 11% decline in container tonnage in March 2021, compared to an overall decline of 5.7% for 2020, in the midst of the pandemic. That decrease amounts to 300,000 tons of freight, or the equivalent of two Olympic Stadium towers. By way of comparison, the Port of New York and New Jersey saw a 12.6% increase in freight traffic in January and February 2021.
Some blame these variations, meaning decreases in Montreal and increases elsewhere, on the instability at the Port of Montreal caused by difficult and unsuccessful negotiations and sporadic strikes. Last summer’s strike dealt a hard blow to Montreal port operations and North American trade. In fact, 80,000 containers were rerouted or stuck. Nearly 40% of Quebec SMEs were concerned about negative impacts, because wholesalers lost almost $600 million worth of sales. It took three months to recover, and many businesses chose to reroute their goods through other ports, like the Port of Halifax. Rerouting increases the freight cost, which can be as much as 20 times the regular cost. Rerouting containers through the Port of Halifax carries an additional price tag for land transportation that ranges from $300 to $700 per unit. Some goods remained stuck at the Port of Halifax for two months because of the strike in Montreal.
Such disruptions can cause millions of dollars of losses for some businesses, such as the ones in export sectors like the aluminum, automotive and raw materials sectors.
It is therefore very urgent to find a solution to the labour dispute at the Port of Montreal for the good of everyone. That is why I encourage you, honourable senators, to support this bill, knowing it is absolutely within the government’s jurisdiction to act on this matter.
This bill essentially does two things. It orders an immediate return to work, imposing significant financial penalties on parties who choose to defy the law. It also gives a mediator-arbitrator the power to use a formula to adopt a new collective agreement if the parties cannot agree. This formula is mediation-arbitration, and the final-offer arbitration process, to which I will return later, has been eliminated. Some people are questioning the constitutionality of such special legislation, which they say infringes on the fundamental rights of workers. What exactly is this all about?
Section 2(d) of the Charter protects freedom of association. The courts have clarified this right, as the Quebec Court of Appeal noted in a decision earlier this month, and I quote:
Freedom of association protects a right to collective bargaining that remains a limited right. It does not guarantee the achievement of any particular outcome as a result of bargaining.
The title of the ruling I just quoted is Attorney General of Québec v. Les avocats et notaires de l’État québécois. The decision states that in order for special legislation to violate section 2(d), it must be shown that the measures in that legislation disrupt the balance of power between the employees and the employer in such a way that the measures substantially interfere with a meaningful collective bargaining process.
In fact, in Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court of Canada stated the following in paragraph 25 of its 2015 decision:
Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Where essential services legislation provides such an alternative mechanism, it would more likely be justified under s. 1 of the Charter.
The last passage I just read is important since the rest of my speech will be on section 1 of the Charter. I am sure that if Bill C-29 is challenged before the courts, it will be deemed constitutional, or at least deemed compatible with section 1 of the Charter. As a reminder, this section provides that a violation of a Charter right, like the one guaranteed in section 2(d), can be justified in a free and democratic society if that violation responds to a pressing and substantial objective and results in minimal impairment to the Charter right. The bill satisfies these criteria. The strike at the port will cause serious, immediate harm to key businesses and sectors, which also jeopardizes public health and safety. Under section 1 of the Charter, these elements represent pressing and substantial objectives to which the bill responds.
To convey the gravity of this harm, I will again provide examples of the potential consequences of a strike at the Port of Montreal, taken from the decision by the Canada Industrial Relations Board on June 8, 2020:
. . . in the event of a strike or lockout at the Port of Montréal, some medications going to Quebec, Ontario and the United States may be delivered late or expire before they are delivered.
. . . 48,882 tons of pharmaceutical products pass through the Port of Montréal in any given year.
. . . because of the supply chain that exists at the Port of Montréal, companies keep very little inventory in storage at their own premises. According to the witness, warehouses are now located on the St. Lawrence River, at sea, in trucks, on trains or on the wharves of the Port.
Given that several key sectors of the economy depend on “just in time” supply, considerable immediate harm could be caused if the strike were to continue for many more days, for example in the steel industry, which depends on the shipping of iron ore by boat.
If the courts were to find that the bill infringes on the constitutional right of association of the longshoremen, I have every confidence that they would also find that the bill constitutes a minimal infringement on that right. Allow me to explain.
The bill will ensure that the parties are consulted. It allows them to agree on the selection of a neutral and independent mediator-arbitrator. The mediator-arbitrator will have 14 days or, if the parties agree, 21 days to engage in mediation before proceeding to arbitration. After that period, the parties may also continue to negotiate a new collective agreement without having an arbitrated agreement imposed on them, providing their agreement is finalized before the mediator-arbitrator submits their report, which must be done within 90 days of the day on which they are appointed. These aspects of the bill offer an alternative to exercising the right to strike as a way to maintain the balance of power between employees and the employer so they can negotiate a new collective agreement. This defining characteristic of the bill enables it to pass the test of reasonableness and justification pursuant to section 1. In 2015, professors Drouin and Trudeau published an article in the McGill Law Journal, which reads as follows at page 438:
The presence of a mechanism for dispute resolution by a neutral, independent third party represents another important consideration in the minimum impairment test. In fact, the absence of such a mechanism could be fatal in the case of legislation prohibiting strikes. In that regard, many of the special back-to-work laws [in Canada] that were previously examined provide for the use of mediation or arbitration to resolve the dispute. A mediation-arbitration process . . . is certainly less prejudicial than simple arbitration that is not preceded by mediation or at least one last period of direct negotiations between the parties. That is also the case for legislation that leaves it up to the parties to choose the arbitrator who will intervene to resolve the dispute, as opposed to legislation imposing such an arbitrator, particularly if the passage of the legislation is not preceded by consultations to that effect.
Bill C-29 not only provides for the use of mediation and arbitration, but it also enables the mediator-arbitrator to use another formula, that of final offer selection. Before the amendment made by the House of Commons, that was another positive aspect of the bill that supported the idea of meeting the minimal impairment test of the Charter section 1 analysis. I want to once again quote the article published by Professors Drouin and Trudeau in the McGill Law Journal in 2015:
. . . this formula requires the arbitrator to choose the final offer formulated by the union or the employer’s final offer to adjudicate the dispute and determine the applicable working conditions. . . . it is reasonable to consider final offer arbitration, preceded by a period of bargaining imposed on the parties in the presence of a mediator, as a formula that is less prejudicial to the collective bargaining process than the regular arbitration of a dispute.
I quote this passage as it reminds us that the union leader, Mr. Murray, in citing the amendment to the bill, was pleased with the removal of the last best offer process. It would be rather odd that the union, which expressed its intent to challenge the law, would claim today that the process of the last best offer does not meet the minimal impairment test.
The bill now proposes only one mediation and arbitration process led by a neutral and independent third party, which could even be chosen by the parties. As Senator Gold explained so well, this situation differs from the Quebec Court of Appeal ruling handed down this month. Indeed, this ruling held that the provincial law that ordered Quebec lawyers back to work in 2017 was unconstitutional, because the Quebec legislator failed to provide a genuine and effective dispute resolution mechanism in its legislation, which contravenes the findings of the Supreme Court of Canada in Saskatchewan Federation of Labour v. Saskatchewan, which I quoted previously.
I will conclude my speech by paraphrasing paragraph 103 of the Quebec Court of Appeal decision. In introducing Bill C-29, the government determined that negotiations on the collective agreement at the Port of Montreal had reached an impasse. It weighed the public interest against the serious, real and profound prejudices an extension — even a short one — of the dockworkers’ strike could have for Canada, including the risk of a shortage of essential goods in the middle of a pandemic. The legislator decided to intervene by introducing back-to-work legislation. This decision is the government’s prerogative, and the courts will have to give deference to this social and political choice. However, the legislator has chosen — and I believe it had to do so — to compensate for the suppression of the right to strike with a mechanism to resolve the dispute between the employer and employees that will allow the impasse at the Port of Montreal to be resolved fairly, efficiently and promptly, in the best interests of the country. That is why I support the bill, and I urge you, esteemed colleagues, to do the same so that it can be adopted by the end of the day. Thank you.
I am rising to speak in support of Bill C-29 at third reading. This special law would force dockworkers at the Port of Montreal back to work.
As Deputy Chair of the Transport and Communications Committee, I have been made aware of the vital operations at the ports of Montreal and Prince Rupert, in B.C. I’m from Montreal, I was a journalist, and so I’m well aware of the toxic labour relations at the Port of Montreal, where there have been lockouts and difficult strikes. During one costly longshoremen’s strike last summer, executives and security guards reported being assaulted and beaten by a group of about 50 unionized workers. The union replied that the incident occurred because scabs were present at the picket line, which was seen as a provocation. Union rhetoric is sometimes brutal. Many Montrealers were appalled to see the longshoremen’s union advisor tell the mayor of Montreal, Valérie Plante, on Twitter to “shut her yap,” because she was not adequately informed about the situation at the port. Mayor Plante was worried about how a general strike would impact the city. Yes, the negotiations are at an impasse. In early April, management stopped paying hours not worked during a tense period, which inflamed the situation. We are in the middle of a pandemic that is making life really hard for a lot of people. It may be helpful to reiterate, without going into too much detail, that the Montreal longshoremen’s working conditions are enviable compared to their colleagues at other Canadian ports. One Montreal longshoreman who broke ranks with his union wrote the following: “The pay is amazing. When you want to become a longshoreman, you know what the work is like.”
The right to strike, which is constitutionally protected, is essential to maintaining the balance of bargaining power between employers and employees. That said, court rulings that state that economic consequences aren’t a valid reason to limit the right to strike were made before the pandemic.
Therefore, a constitutional analysis of Bill C-29 cannot ignore the context we’re in. While the strike is legal, the right to strike is being exercised in the midst of an unprecedented humanitarian crisis. Other fundamental rights have been restricted in response to the pandemic, among others, the mobility rights being restricted by the curfews. In my view, the longshoremen general strike in the middle of the third wave of the pandemic is legal, but it is illegitimate, because it’s the straw that breaks the camel’s back for other workers, businesses and stores, who just went through a year in hell or who are about to go bankrupt.
Many businesses, hospitals and pharmaceutical companies need supplies passing through the Port of Montreal.
In 2019, two expert witnesses told the Canada Industrial Relations Board that supply chains are designed to be, and I quote:
. . . “just on time”, meaning that products are delivered at the time when they are needed since retailers and manufacturers now tend to have fewer warehouses and depend on products arriving at specific times.
We also learn, from the evidence heard by the board, which Senator Carignan also quoted, that 425,000 tonnes of dangerous goods can pass through the port in one year and that, in the event of a work stoppage, those goods have to be kept somewhere, possibly in a warehouse.
In addition, the main supplier of medical equipment for health facilities, including the CHUM, receives a large amount of that equipment through the Port of Montreal.
However, that was before the beginning of the pandemic and, at the time, the CIRB found that those inconveniences would not cause an immediate and serious danger to the safety or health of the public within the meaning of the Canada Labour Code. That decision is the subject of an application for judicial review before the Federal Court of Appeal.
Longshoremen are not the only ones who have had problems negotiating their collective agreement during the pandemic. Other labour groups in Quebec are also dissatisfied with their working conditions. I am thinking of the exhausted nurses who are being forced to work overtime and who are constantly at risk of being infected. I am thinking of the teachers who have had to reinvent themselves, who are constantly worrying about keeping masks on little ones and who have to teach students in class and those isolating at home. Their unions have expressed their discontent loud and clear, but not by slowing their pace of work or refusing to work overtime. Instead, they are running shock advertising campaigns that air over and over again on television as an adapted union strategy. That strategy is victimless because we are in the midst of a pandemic and we cannot go without our essential services, given all of the disruptions there have been to society as a whole and to our supply chains. Let’s not add to that. The public interest must prevail.
It is true that all Port of Montreal activities, as a whole, were not deemed an essential service by the CIRB prior to the pandemic. However, should the government legislate this by amending the Canada Labour Code? The federal government has already done so for products destined for Newfoundland transiting through the port of Montreal. I think this option needs to be considered. When asked about this issue earlier, the Minister of Labour, Filomena Tassi, did not comment on it.
In addition to resolving the current dispute, this solution would help prevent the cat-and-mouse game that has been going on for too many years between the longshoremen and their employers, who are several large shipowners, which complicates the bargaining process. Repeated threats to shut down the port put a heavy burden on the economies of Ontario and Quebec.
Experts estimate that each day of strike action costs the economy between $10 million and $25 million, not to mention all the problems of lost contracts, revised logistics, lost time and lost revenue, not only for the companies, but also for their employees, including everyone from machinists to salespeople to truck drivers.
I’d like to say a word about a Vietnamese restaurant owner I have known for 20 years who’s at the end of his rope and who’s barely getting by on takeout orders since last summer. The threat of a strike at the port alone, the anxious markets, suddenly caused a spike in the cost of his single-use products. He applauds the special legislation.
In this dispute, the parties have been bargaining for far too long already without reaching any agreement. Despite the 100 or so mediation sessions, last summer’s strikes and a seven-month truce, there is no agreement in sight.
Operations at the Port of Montreal have to return to normal and if the mediator-arbitrator ultimately writes the collective agreement, either party might have to deal with unpleasant surprises. This threat may be enough for the union and management to see eye to eye. So much the better if that is the case.
For all the reasons I just mentioned, I reiterate that I will be voting in favour of the special legislation. This last resort is necessary.
Honourable senators, I rise today to share with you my indignation over Bill C-29. I will explain why I intend to vote against legislating the longshoremen back to work at the Port of Montreal.
First, the Trudeau government is asking us today to pass a bill that will obviously be struck down by the courts within three or four years, but that will, in the meantime, deprive longshoremen of the fundamental right to strike and allow maritime employers to change working conditions without having to negotiate.
The Trudeau government disregards a 2015 Supreme Court ruling in Saskatchewan Federation of Labour v. Saskatchewan stating that limiting the right to strike through special legislation is justifiable only for public health and safety reasons.
What’s more, the same court also stated in its ruling that anticipated economic damage are no reason to deprive workers of the right to strike. It seems clear enough to me, and it also seems clear enough to many labour law and labour relations experts who expressed their opinions publicly in the last few days.
I’m not only the senator you know, but also a former union leader who is very sad to see the present government’s irresponsible behaviour and its lack of respect for workers.
With Bill C-29, the Liberals are rehashing the same strategy they already employed with their first version of the legislation on medical assistance in dying. No matter how illegal their legislation, they force the members of this chamber, at least those who will do it today, to pass legislation that will eventually be declared illegal by a court of law.
How can we not feel indignant about the political audacity and the amount of Liberal contempt for court decisions in our country?
How can we not also feel indignant about the Liberal contempt for workers’ rights, which were acquired over many years at the bargaining table?
Clearly, respecting court rulings and workers’ rights is not in Mr. Trudeau’s DNA.
Let’s talk more specifically about the dispute at the Port of Montreal.
First, no one in this chamber should find it normal that dockworkers are without a contract since 2018, as is the case now.
In my view, this is what happens when employers strategically avoid negotiating, knowing that they can count on the complacency and the complicity of the government of the day to pass legislation that violates the rights of unionized workers.
Port of Montreal dockworkers didn’t steal their current working conditions. They obtained them over the years through negotiation. The maritime employers agreed to those working conditions.
Now, if those same employers want to change those conditions, the principles of labour relations require that to be done through negotiation, not through special legislation enacted by the government, which will designate an arbitrator to set the dockworkers’ future working conditions without any oversight.
The maritime employers’ strategy seems clear to me. They refused to negotiate seriously. They tried to unilaterally modify provisions governing work schedules. That resulted in the work stoppage on Monday. Most of all, they publicly said malicious things about dockworkers’ rates of pay for the purpose of stigmatizing them in the eyes of some members of the public and certain blinded politicians.
Pay is not the issue in this dispute. Work scheduling is. Dockworkers want better work schedules so they can achieve a better work-life balance and not have to be at work 19 days out of 21.
I believe we’ve heard Prime Minister Trudeau describe himself as a man who wants to put families first. Once again, we see how good he is at talking about something, then doing the opposite of what he promised.
Those who have gone to the trouble of examining the different stages of the current dispute can discern the maritime employers’ strategy.
Historically, the five maritime employers are competitors who compete for the maritime transportation market in Montreal; they literally steal contracts from one another and work independently.
However, when the time came to negotiate, these same five employers decided to form a common front to deal with the dockworkers’ union.
To achieve their ends, the maritime employers of the Port of Montreal chose Martin Tessier, who appeared before us today, as president of their association less than two years ago.
Where did Mr. Tessier come from? He came from Bombardier, where, as the vice-president of human resources for many years, he participated in what some might call restructuring. In reality, he participated in layoffs and, as such, was complicit with the company’s executives who left with millions of dollars in their pockets to the detriment of small investors and taxpayers, who saw their government support the dubious operations of the company, which ran at a deficit. Martin Tessier is the one maritime employers chose to take on the longshoremen’s union by introducing him to us in a July 2019 press release as a man whose management style is, and I quote, “focused on building trusted long-term relationships.”
However, we learned today that this man, who has so many great characteristics, has not been at the negotiating table since his appointment.
I would like to add the following information to support what I was saying about the maritime employers’ strategy. Just yesterday, the employer published a press release indicating that maritime employers would comply with the special legislation by reestablishing job security and respecting the provisions of the collective agreement.
To be clear, that press release was tantamount to the employers admitting that they were no longer respecting the collective agreement currently in place. In the world of labour relations, this is known as pure provocation on the employer’s part, a strategy that consists of provoking a strike knowing that the Liberals in power will pass special legislation.
How can we give Mr. Tessier any credibility? A few hours ago, he testified before the Senate and told us that he was ready to do today what he refused to do a week ago, which would have prevented the strike and the special legislation in the first place.
Ask yourself if the maritime employers already had a promise from Justin Trudeau that Parliament would intervene if they allowed negotiations to drag on, thereby causing a walkout that would suit them. Ask yourself this simple question before you blindly support Bill C-29.
We have before us a useless, unconstitutional, anti-worker bill that violates a Supreme Court ruling in Saskatchewan. More importantly, the bill before us does nothing to resolve this labour dispute, but rather supports a hypocritical employer that has no respect for the workers of the Port of Montreal.
Justin Trudeau and his government could have responded to that attitude any number of ways other than with Bill C-29, an unconstitutional law that bludgeons workers’ rights. In a few years, some judge will recognize the illegality of this bill. I have no intention of being complicit by voting in favour of it today.
Maybe I should repeat myself. I have never blindly supported bills put forward by the Liberals and Justin Trudeau, and I never will. I will not close my eyes and hold my nose to vote in favour of this special legislation. Thank you.
Honourable senators, allow me to present a few observations as a jurist and senator from Quebec.
The first ones will be on the role of the Senate as compared to the House of Commons and the government, now that the Senate is an institution that isn’t controlled by the political parties represented in the House of Commons. The second observations have to do with the fundamental rights at play here, and the third with the contents of Bill C-29 before us.
The general public may not fully realize it yet, but more than three quarters of the members of this chamber are affiliated to three groups that have no ties to the political parties or the government. What’s more, none of these groups impose a position on its members when it comes to the votes that are held in the Senate.
In other words, a vast majority of the members of this chamber believe in individual independence and equality among senators. Former practices have become a thing of the past. The government of the day has to deal with this new reality as is the case today with the Committee of the Whole made up not only of ministers, but of representatives from both parties. By the way, the same cannot be said for the House of Commons, where the bill was passed under a gag order.
This newfound independence allows us to better fulfill our mandate and to make decisions based on facts while fully respecting the fundamental rights of all Canadians, including indigenous treaty rights, minority rights and rights recognized by the Charter of Rights and Freedoms, like the right to equality, freedom of association and freedom of expression.
I now turn to the fundamental rights that are before us today and that must be taken into account during our discussion and reflection on this bill.
In the 2015 decision in Saskatchewan Federation of Labour v. Saskatchewan, which Senator Gold mentioned earlier, the Supreme Court of Canada ruled on the extent of the right of association, most notably to include the right of freely associated workers to bargain collectively and, after negotiations have failed and a collective agreement has expired, to use legal pressure tactics to force an agreement, including, ultimately, by going on strike.
Justice Abella, a remarkable legal mind who will soon retire from the Supreme Court where she was appointed in 2004, wrote the following in the majority decision in 2015:
The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. . . . The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.
As the majority of the Supreme Court of Canada judges pointed out, the right to strike fosters fairness in the bargaining process. It pushes both sides to negotiate in good faith, which puts employees on an equal footing with their employer.
In this case, the last collective agreement freely negotiated by the Maritime Employers Association and the longshore workers’ union, CUPE Local 375, went into effect on March 20, 2013. At the time, this agreement represented the shared intention of the parties. It was not imposed by a law or by arbitration. It did not happen by accident, but was the result of long negotiations by experienced people on both sides. In fact, since 1970, all collective agreements at the Port of Montreal have been freely negotiated.
As you know, collective agreements are by definition of limited duration. The agreement signed in March 2013 expired in December 2018. Unfortunately, more than two years later, the parties are still unable to agree on the terms of a new collective agreement. Based on what I understand from what we heard today in Committee of the Whole, the parties seem to be far apart on about 30 issues.
It was in this context that, in April, the employer decided to change the income guarantees and the work schedules. These actions came in response to job action taken by the employees, but they served to heighten the adversarial atmosphere. The workers responded with a general strike, a right that is enshrined in law. A mediator and many outside actors, who were calling for a return to the status quo that existed before the events that provoked the strike, were not able to resolve the situation.
In the meantime, this general strike — which, I repeat, is completely legal — has had significant consequences for the Montreal area, all of Quebec, and many businesses and individuals in eastern Ontario and some Maritime provinces. These consequences are apparently even affecting some medical supply businesses, while we are in the middle of a pandemic.
That is probably why the mayor of Montreal, the Government of Quebec and many economic stakeholders in Quebec are unanimous in calling on the federal government to intervene. They say that the stakes are not limited to the employer’s economic interests, but also affect the development strategy of Montreal and of Quebec, as well as the supply of goods to third parties, particularly during the pandemic.
On the basis of mediation reports, the government came to the conclusion that an agreement to bring about the resumption of operations would be impossible to achieve. It is in this very particular context that it proposed that Parliament pass special legislation.
The government proposed special legislation as a representative of the community, not as an employer forcing the other party to accept its conditions, as was the case in the Saskatchewan Federation of Labour v. Saskatchewan decision, nor to impose its economic interests, as in the case of the Canada Post Corporation, of which the government is the principal shareholder.
In other words, the government’s intervention in this case is driven only by its perception of what must be done for every dimension of the public interest. In this instance, the bill will have several effects, one of which is to force workers to go back to work, or, in other words, to end their right to strike.
In my view, such an intervention is always possible under exceptional circumstances, even if it puts an end to the exercise of the constitutionally recognized right to engage in lawful strike action in the exercise of the right of association, provided that it meets the strict criteria of section 1 of the Charter of Rights and Freedoms.
What is this case all about? First, we have the June 2020 decision from the Canada Industrial Relations Board, in which it refused to declare that maintaining all services required for the full operation of the port constituted an essential service. Based on evidence previously presented, the board found that the employer was demanding too much. It’s important to remember that if too many things are designated as essential services, the right to strike becomes meaningless.
I also want to point out that the bill will restore the expired collective agreement and require binding arbitration if the parties cannot reach an agreement after a mediation period. This arbitration may cover all of the terms of the collective agreement that are at issue, of which there are around 30.
In other words, the bill mandates an end to the hostilities, forces negotiations to resume and, in the meantime, restores the collective agreement that was freely signed in March 2013, including the obligation that the employer pay for guaranteed hours. I would remind you that it was the decision to reverse these guaranteed hours after the collective agreement expired that provoked the strike.
As with any collective agreement, this one will also regulate the employer’s management rights. Do all of these measures constitute justified and minimal impairment to the Port of Montreal workers’ right to strike? I understand that the unions will put this question to the courts. I will refrain from answering it, but I do want to point out that this situation seem quite different from the case of the Canada Post Corporation, which has quite a history with special legislation.
Mr. Speaker, that is why I will not vote for or against this bill. I will abstain if a recorded division is held. In the event of a voice vote, this speech will confirm that I did not vote in favour of the bill.
Before I conclude, I want to point out that in response to my questions earlier today, Mr. Tessier, speaking on behalf of the Maritime Employers Association, said that effective tomorrow morning, if the bill is passed, they would cancel the two unilateral changes to the working conditions made on April 9 and 22 that provoked the general strike.
I want to remind honourable senators that the union has repeatedly been saying for the past week that its members would resume work as soon as these measures are revoked. It’s really unfortunate that the mediation process didn’t lead to that result, but I’m glad to see that, during the Senate proceedings, the employer finally committed clearly to what the union has been asking for.
Honourable senators, I’m rising today to express my support for Bill C-29, An Act to provide for the resumption and continuation of operations at the Port of Montreal. As a Montreal senator, I believe it is my duty to say a few words on the matter.
As others have already explained, Bill C-29 aims to put an end to the work stoppage taking place at the Port of Montreal and to offer the Maritime Employers Association and the Longshore Workers’ Union, CUPE 375, a neutral mediation and arbitration process to resolve their differences.
We know that both parties have been at the bargaining table since September 2018, but to no avail. They met more than 100 times, and a strike took place in August 2020. In spite of the good intentions on each side, the deadlock remains and has led to the present strike. Of course, I want to thank both parties for accepting to appear before us earlier this afternoon.
I want to emphasize that I believe in the collective bargaining process. I recognize that Canadians have a right to claim better working conditions and to exercise their right to strike. I’m not questioning that. On the contrary, I’m sorry to see that we’ve come to a point where the government needs to intervene with special legislation.
In reading the Charter Statement for Bill C-29, I note that the government recognizes that the bill potentially engages two sections of the Charter, including the clause that provides that everyone has freedom of thought, belief, opinion and expression. I know the government introduced this bill as a last-ditch effort to prevent further harm to our economy and get products moving again, while giving both parties an opportunity to pursue negotiations through a legislated mediation and arbitration process. I am hopeful the parties can resolve the issues in dispute with the help of the mediator/arbitrator and that a new collective agreement can be reached.
Admittedly, supporting this bill leaves me a little uneasy because it puts me in the difficult position of prioritizing the rights, freedoms and ability to earn a living of some Canadians over others. I am not taking this matter lightly.
However, I also believe it would be a little short-sighted for me to only consider the claims of the workers and simplify this matter as one that deals exclusively with workers’ rights and the ability to negotiate a collective agreement. In my assessment of the situation, I felt it was important to consider the bigger picture and the short- and medium-term impacts of the work stoppage.
As I struggled to take a position on this bill, the overall well-being of our economy — amid a pandemic no less — is the reason I chose to support Bill C-29. In my view, the government is trying to find a balance between the rights of the port dockworkers and the ability for Canadian businesses to export or import products and conduct their affairs.
It’s clear to me that if this strike persists, there will be harmful impacts on our economy, businesses and the labour force. It has been said that the strike is costing the economy between $10 million and $20 million per day. Today is day five.
We also have data confirming the negative effects on the economy from last summer’s work stoppage. For instance, 80,000 containers were turned away or immobilized. Wholesalers lost close to $600 million in sales and it took three months to catch up on delays. We also know that some U.S. businesses have already shifted their business to American ports and some Canadian businesses are now moving their products through Hamilton and Halifax. While I appreciate some business has shifted to other Canadian ports, as a senator from Montreal, I am obviously concerned that this business will never return to Montreal and that there will be a permanent hit on my city’s reputation.
According to Minister Tassi:
This work stoppage affects more than 19,000 direct and indirect jobs associated with transit through the Port of Montreal . . . would affect the jobs of up to 250,000 employees in Montreal and 273,000 workers in Ontario employed in the production of shipping container products.
I also appreciate that Minister Tassi and Minister Alghabra provided further details on the economic impact of the strike when they appeared before us in the Committee of the Whole today.
I want to remind senators that the Port of Montreal is the largest port in Eastern Canada with connections to more than 140 countries, and it’s the second-largest container port in Canada. In 2019, it handled over 41 million tonnes of cargo. On average, over 2,000 vessels a year, up to 2,000 trucks per day, and 60 to 80 trains per week transit through the port. All this activity represents approximately $40 billion in goods.
I appreciate we were in a pandemic last year, but it’s also worth pointing out that the tonnage of cargo dropped by 13.25% last year compared to 2019. In other words, our economy cannot afford another indefinite work stoppage at the port. And our businesses, many of whom are barely surviving, should not have to deal with additional uncertainty and the risk of lost revenue and lost jobs. Not at this point in time.
A group of six major organizations, including the Chamber of Commerce of Metropolitan Montreal, the Conseil du patronat du Québec and the Manufacturiers et exportateurs du Québec, asked the government to intervene in this matter some time ago, and responded favourably to Bill C-29. The group, which also includes more than 400 signatories, believes that the port’s operations are essential to keeping the economy running smoothly and that the Port of Montreal is a strategic infrastructure that our businesses must be able to rely on as they redouble their efforts to ensure their recovery.
The Government of Quebec also shares that view. Pierre Fitzgibbon, Quebec’s Minister of Economy and Innovation, believes that the Port of Montreal is a public service that will play a strategic role in the economic recovery, while his colleague, the Minister of Transport, said that Quebec’s economy cannot afford a protracted labour dispute. I agree that, in the current context of economic recovery while we are still in the middle of a pandemic, Canadian businesses cannot withstand another blow. The work stoppage would be catastrophic for them. Some people have asked the government to stand up for the Port of Montreal longshoremen and protect their rights by scrapping this bill. While I appreciate the intentions behind this position, I think we also have to worry about the state of our economy as a whole and the survival of our businesses, which need a reliable, efficient and competitive freight transportation system.
In supporting this bill, I am siding not with the wealthy, as some politicians have suggested, but with Quebec’s workers and small- and medium-sized businesses. In fact, the Canadian Federation of Independent Business said that 53% of Quebec SMEs believe that a strike would hurt their business, and 72% of respondents wanted elected officials to step in.
Given the extraordinary circumstances and the expected negative impacts, I am willing to support this bill, and I urge the Senate to pass it without delay.
Honourable senators, today I would like to present some of my thoughts on this legislation. Bill C-29 provides for the resumption of operations at the Port of Montreal. Did we want to be here in this situation? No, but I think it is important to try to understand why we are here.
We heard the testimony from the witnesses on both sides of the issue. Of course, each side is going to have its own views on why we are here, but the question before us is: What can we do about it now?
I grew up around the Port of Halifax. I am the son of and come from a long line of proud union members. Unions have long fought hard to represent their workers and achieve pay equity, proper time off, dignity in retirement and many other protections, and I will continue to support the unions in this noble pursuit.
I also recognize that the employer has a duty to their employees to treat them fairly and to run a profitable business, but at what real cost? The two parties involved are at an impasse, and I appreciate the efforts of both sides to come to a settlement, but those efforts have not produced a satisfactory agreement, and here we are considering back-to-work legislation.
Honourable senators, we are talking about hundreds of millions of dollars in trade and thousands of jobs, but do not forget that because of this strike, the free flow of goods is threatened and the cost of goods could rise, and that will affect all Canadians at a time when they can least afford these sorts of disruptions; not to mention it is harming our image as a trading nation. A lot is on the line.
We have seen in the past labour strikes in a variety of sectors in our economy, and many times agreements were reached equitably. This is not the case here.
So what is the problem? Is it about salaries? Is it about schedules? Is it about working conditions? It depends on who you ask, but the blame game must stop, and the two sides need to come together. It is a shame a bill like this is even necessary, but hopefully an equitable agreement can be reached, and I encourage both parties to do whatever they can to reach a reasonable resolution, whether this legislation passes or not.
The Port of Montreal could suffer severe economic and supply losses, and that only hurts Canadians as we grapple with the third wave of this deadly pandemic.
In the past, port traffic has been diverted to the Port of Halifax. While we will indeed take the business, I will not stand for pitting one part of the country against another, even if the supply chain demands it. The Port of Halifax has enjoyed continued labour peace for years, and I applaud the unions and the employer for keeping and sustaining agreements and hope that all involved will continue to do so.
The Port of Vancouver, for example, has also suffered labour strife, and lots of it, over the years, similar to what’s going on at the Port of Montreal now.
That raises the question, one I posed earlier: Why do we continue to have difficult, lengthy and sometimes acrimonious negotiations? Can we not learn from one another across the country about how to do this right and respect both sides?
While I do not want an interruption in supply chains, I have a hard time voting for legislation that seems to undercut the union’s efforts. However, the damage to the Port of Montreal and the loss of value, as we heard testimony earlier, could be significant, and with the temporary diversion of shipping elsewhere, whether it be the Port of Halifax or other ports along the eastern seaboard, it’s not all going to come back. That’s going to cost jobs and hurt us all.
However, colleagues, I will vote for this bill in the hopes that both sides can come to an adequate agreement — albeit forced. Canadians are counting on it.
Honourable senators, I want to express my thanks to my colleagues who have gone before me. Very interesting positions have been put forward along with interesting observations and a good discussion. I do have concerns about the process, which I’ll speak to in just a moment, but I appreciate the contributions people have made.
I also want to thank Senator Gold. Your presentation was thorough, professional and wise, and, of course, I would expect nothing less from you and nothing less from a lawyer who’s very accustomed to teaching, analyzing and determining constitutional matters. That’s appreciated.
I also appreciate your response to me when I called earlier this week to ask that the Committee of the Whole include both the employer and the union and not only the ministers. I am very appreciative that request was agreed to by all of the leaders and that we were able to have this session today.
For those people who appeared in the Committee of the Whole, from the government, ministers’ officials as well as the Maritime Employers Association and the union, I appreciate it.
I also had the opportunity to have a call directly with the national president of CUPE. I spoke directly, two days ago, with Mr. Tessier, who was with us today, from the MEA. In fact, he called me over the supper break to see if I had any more questions, so I very much appreciated that. The head of the Montreal Port Authority as well — they were all very helpful in helping me understand the issues from various perspectives here.
I do want to speak to content because that’s most important, but in terms of process, I find it completely unsatisfactory, given that I understand this is emergency legislation, that we, in a very quick turnaround, with the legislation in front of us and with only a Committee of the Whole, had no opportunity to probe a number of these questions around the constitutionality and Charter compliance, which is one of the predominant roles assigned to us as senators. We have had a very good presentation of regional interests, and I appreciate all of the Quebec senators and Montreal senators who have spoken thus far who are helping us understand their view on the economic impact. I don’t dispute economic impacts that result from strikes, particularly in the private sector. I think it’s important for us to realize that in the regime of collective bargaining, when things come to a standstill or get to an impasse, there are rights afforded to both the employer and to the union with respect to notice of lockout and lockout, and notice of strike and strike, and that on either side those cause economic impacts, and that each situation is to its own particular facts and has to be looked at in that light. However, the bottom line is that that is the bargaining leverage afforded through a legal collective bargaining regime.
I respect all the comments that have been made, but I was talking about what I can accept or agree with or not. I can’t agree that we can make a decision in supporting back-to-work legislation at which the heart of the question for us is to determine if there are reasonable justification and reasonable grounds under section 1 of the Charter to override the rights that are provided in section 2 of the Charter. I can’t accept that we can say that this is a legal strike, but it’s an illegitimate strike. I appreciate that’s opinion, and respect that that is opinion.
To me, legal framework when followed and pursued — and where there are not games of purposeful delay on either side or purposeful strategic positioning on either side — using in a dilatory fashion the rules that are set out, means these parties should be able to come together. They haven’t. What’s the next step?
The next step for me is not saying, within three days of a full labour stoppage occurring, that there is no hope here and that we’re going to step on these section 2 rights.
I want to ask just a couple of questions; if all of us feel a sense of confidence in the information we have thus far. I have heard we may not get the volume back to Montreal. We may be affected $10 million to $20 million. We may cause urgent medical supplies not to be delivered: COVID and non-COVID. There have been a number of statements, all of them couched in the “may, may not, may, may not.” We’re at a time when we’re under tremendous stress in our economy. We’re still seeing economic growth happening but not fast enough and we need a recovery. I’m with everybody on that. But why in this instant are these workers to bear the brunt — in fact subsidize — the nature of the employer’s business in this case.
I think that we have not been presented with enough information to wrestle the constitutional issue as far as we could as a chamber. Obviously every court will decide it based on the facts in front of it. We don’t know what a future decision will be. We do know what the precedents are. The precedents clearly support that there must be very solid, justifiable reasons for infringing these rights. The Charter Statement we got was very vague about broad economic impacts. That’s not a test. What is the impairment that is being put here, and what is the imbalance that is being put here? Trying to minimize that imbalance is absolutely important.
The parties have agreed to live up to provisions within the code, obviously with grains. The provision of services to Newfoundland is not, in fact, in the code as was stated earlier, but it is something that the union and the employer have agreed to, and also to move necessary COVID drugs and other drugs.
Why then are we being told by officials that there are a number of containers sitting on the docks right now that contain COVID pandemic supplies? I asked Mr. Tessier that in the phone call that we just had. He didn’t know the answer to that. He has told me that during the last strike, when the officials from the department told us that no containers were moved, when they asked the union to move under the agreement and under the provisions that the union had given of what they were voluntarily willing to do, they did in fact move those. They didn’t ask often. He told me that is because of the logistical issues that they see.
We have not been able to probe those things on either side, and again I think the process has not served us well to be able to deal with the issue that we have finally.
I am just not sure if perhaps the speaker might be able to tell me how much time I have left. I would like to discuss the provision.
Thank you very much. I appreciate that. I intend to move an amendment, so let me wrap up talking about the bill itself, saying I do not ascribe motives to the government of being anti-union here. I think that there is a great deal of pressure all governments and all Canadians are under in the circumstances that we face. They look for a balance. Do I think they got it right? No, I don’t. I think that the constitutional rights have not been afforded full consideration here, and the rationale that we’ve been given has not met the tests of either the Saskatchewan Federation of Labour decision of the Supreme Court or CUPW and Canada Post under former Prime Minister Harper; legislation that was brought forward to end the strike.
I do want to make an amendment, though, that will address one of the issues the union raised, which is the return of the provisions of the collective agreement in the working conditions as of April 9. You’ll know that the bill provides for the collective agreement to be reimposed as of January 1, 2019. That’s good, but those provisions allow for the unilateral changes in work hours, for example, that were done, and a different mechanism outside of the collective agreement provided the opportunity to the employer to make the changes with respect to job security.
The union has expressed — and I think under the conditions rightly so — a fear that now, after having asked for a week that if those two provisions were removed they would go back to work, they are being told that if they’re forced back to work and the legislation passes, then we will remove them. Both of those could be reinstated at any point in time in the future. Why this amendment is important is that it adds the date of April 9 to the provision of a reinstatement of the collective agreement. The reason that is important is it would then continue the conditions that were in place at that time throughout the process of mediation arbitration. It is an attempt at a further balancing of the interests of the parties here.
Those conditions being frozen as of a date before the MEA introduced unilateral provisions — with notice, but introduced those unilaterally — would keep those provisions from being reintroduced over the course of the remaining mediation arbitration time. For the union, that date is important. We are taking away leverage from them in terms of the economic impact of the strike, and we are not ensuring that the provisions of the collective agreement and the unilateral changes which provoked the full-out strike, starting as of Monday of this week, are eliminated in giving some balance back.
I believe that this legislation has not been reviewed with sufficient time. I understand the reasons for that. But I believe that the responsibility is to come to a determination to the best of our ability collectively on the constitutional issue at stake here — and the Charter rights issue at stake here is paramount — and that we can’t just run roughshod over that. While I appreciate the three-plus hours this afternoon of Committee of the Whole, that does not substitute for being able to bring forward the kind of examination of previous court decisions and of the Industrial Relations Board — which by the way has an expertise particular to the Canada Labour Code and to these provisions — which has ruled that there is no legitimate reason to limit the right to strike with further essential services being declared, and which has taken into account the Supreme Court and other decisions as they are compelled to do when they are making these decisions, and which they have the competence to do as an expert administrative tribunal.