Evidence of meeting #11 for Finance in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was process.
A video is available from Parliament.
1:45 p.m.
Managing Partner, Sack Goldblatt Mitchell LLP, As an Individual
They are strong words, but the government is proposing to do just that, and that's the problem with this bill.
1:45 p.m.
NDP
Murray Rankin NDP Victoria, BC
Time will not allow me...and I may come back, if I can.
Ms. Blais, on behalf of the Department of Justice lawyers, I commend you for your presentation, and, frankly, for your courage in being here. I say courage because of course we're all aware of Edgar Schmidt, one of your members. He was found to be a whistle-blower, pointing out the government's failure to do adequate charter review of federal legislation, and then suspended from the Department of Justice for bringing that to the attention of the courts, despite the withering comments of the Federal Court justice. Your being here is itself a very courageous step. I appreciated your very strong remarks in light of that background.
One of the things you pointed out that I didn't think you elaborated enough on, and I want to give you that opportunity, is the costs issue. You pointed out that this is going to make things more expensive. You think the government would get that and take it seriously.
Could you elaborate on why, in your view, it's going to be more expensive?
1:45 p.m.
President, Association of Justice Counsel
My presentation highlighted three areas, particularly strikes. When members are forced to strike as their only bargaining tool, then services will not be provided to Canadians. We question how that can save taxpayers' money. We only have to look at the foreign service officers to see a very recent and tangible example of that.
The second example is the overcomplication of the grievance process. The AJC is a group that uses group policy grievances. A group policy grievance says that when we think something is being breached in the collective agreement we can file as an association, as opposed to bringing 2,700 individual grievances when we want retroactive remedies. Bill C-4 eliminates that, so you're going to have potentially—for our group anyway, and we're one of the smallest—2,700 individual grievances to get a remedy. How is that cost-effective?
Finally, on the chairperson being able to review an adjudicator's decision—by the way, nowhere else in any jurisdiction in this country is that allowable, and the reason is that it's not efficient. You have another layer of bureaucracy, and over and above the costs, which are real, you have questions of political interference, bias, and those issues. Mark my words, there's a cost implication of having an extra layer.
We've brought out three tangible examples of where costs are not saved with this legislation.
Thank you.
1:50 p.m.
Conservative
The Chair Conservative James Rajotte
Thank you.
Thank you very much, Mr. Rankin.
I'm going to take the next round, as the chair. I do want to get perhaps two perspectives on the essential services. I want to drill down on that.
I thank all of you for your presentations and briefs.
In your brief, Mr. Barrett, when you dealt with essential services, you said:
...it gives the Government the exclusive right to determine whether “any service, facility or activity of the Government of Canada is essential because it is or will be necessary for the safety or security of the public or a segment of the public”, eliminating any recourse for unions to the PSLRB in the event of a dispute.
You have acknowledged that the definition of essential service is remaining, but it's obviously the essential service agreements that will be affected.
Then you go on to state, “The employer must give notice that it has – or has not – designated positions as essential at least three months before notice to bargain can be given, or within 60 days after certification.” You correctly say that it affects essential services agreements.
If you look at the list of essential services examples—border safety security, correctional services, food inspection, accident safety investigations, marine safety, national security—it's a very reasonable list.
I would invite your perspective, because I think probably the three at the table will agree, and then perhaps Mr. Murray will comment.
I know you're going to disagree, but I want to get your view on the record—
1:50 p.m.
Managing Partner, Sack Goldblatt Mitchell LLP, As an Individual
I'm open to any suggestion you might make.
1:50 p.m.
Conservative
The Chair Conservative James Rajotte
Frankly, it seems to me that these are very reasonable steps with respect to essential service agreements.
Is your concern that the government is going to expand the list of what is an essential service way above and beyond border safety security and what's currently deemed an essential service?
1:50 p.m.
Managing Partner, Sack Goldblatt Mitchell LLP, As an Individual
I have not seen the list you're referring to. I heard the minister on the radio saying that he would decide after the fact what is and isn't. But if there's a list, great.
The point is that under the current regime and under the regimes in place in every province except for Saskatchewan, which is on its way to the Supreme Court of Canada, the short answer is, yes, people don't trust the employer to exercise an unfettered discretion to decide, in the case of the federal government, who's essential to safety and security.
There are other criteria in other legislation, but in every other jurisdiction save Saskatchewan, that isn't done unilaterally by the employer, by the government. The employer can make a proposal, the parties bargain, and ultimately it's an independent tribunal that oversees that. That's recognized as necessary to maintain the fairness of the system. It's particularly critical here, where the government has the power to designate up to 79.99% as essential and force a strike because there's no access to arbitration.
I think the concern is that these are words that are flexible in their meaning. That's why you have oversight in every other jurisdiction by a labour board. As I said earlier, I'm not aware of any evidence to suggest that the labour board has gotten it wrong—if anything, unions are critical that labour boards are too deferential to the employer.
Nonetheless, there is some review. The complaint, just so you're clear, is that the right to review that has been a predominant feature of this legislation, and that in fact allows the government to determine the level due to a 1982 Supreme Court of Canada decision—the taking away of review is what people are complaining about.
1:50 p.m.
Conservative
The Chair Conservative James Rajotte
Okay. I appreciate that.
Mr. Murray, can I get your perspective on that issue?
1:50 p.m.
Vice-President, Research, Frontier Centre for Public Policy
Sure. Thank you, Mr. Chair.
Going back to one of your original questions, I really don't think there is an alteration in the meaning at all. I think really what we're dealing with is rather than any kind of empirical evidence that there will be fundamental overhauls to services that are declared as essential, it's more, first of all, a fear and a concern, coupled with the fact that the legislation is not entirely clear, as to why this is really being put in the way it is.
I would agree that a right to review is an essential component because of the fact that the essential service designation can't be overused. I think by potentially overusing that designation, which the government would have the right to do, that could pose problems down the road.
Ultimately, I also think we would have to have a discussion about this definition of safety and security. Right now that list that you read off is very much focused on physical safety and security, but I think as we have seen more recently with governments in economic crisis, both at the provincial level and also in some of the federal government's discussions...does economic security also play into this and those that would possibly be deemed as essential services? Exactly what are the limitations on safety and security?
I think the real concern is not necessarily in the spirit of what is being proposed but rather the ambiguity of some of the language in the bill.
1:55 p.m.
Conservative
The Chair Conservative James Rajotte
I would like to continue this, but unfortunately I am out of time.
Mr. Côté, you have five minutes.
1:55 p.m.
NDP
Raymond Côté NDP Beauport—Limoilou, QC
Thank you very much, Mr. Chair.
I feel compelled to make a comment. A lawyer, I'm not, but I've had the privilege of sitting on the Standing Committee of Justice and Human Rights, like my colleague Brian Jean. And yet his comment on judges' frivolous attitude towards government restraint and accountability made me flinch, considering the government's handling of the whole Nigel Wright/Mike Duffy affair. Be that as it may, I'll come back to the issue at hand.
Ms. Roy, the first time the committee met to study Bill C-4, we heard from public servants. Some of the answers they gave me were especially troubling. When I asked Dennis Duggan whether any sectors or employee classes could be completely excluded from the definition of “essential services”, he had this to say:
“Excluded, off the top of my head, no.”
I then asked him what recourse a bargaining unit or union would have if the government improperly designated a class of employment as an essential service. I asked him whether the matter would have to be brought before the courts, and he answered,
“As I mentioned earlier, the initial process would involve a consultation period with the bargaining agent in question, but beyond that it would be judicial review.”
I'd like to hear your views on this troubling shift towards judicial intervention.
1:55 p.m.
General Counsel, Legal Affairs, Professional Institute of the Public Service of Canada
Indeed, I do find those comments rather troubling in some respects, one being the uncertainty that the essential service designation would create. My colleague Mr. Barrett referenced some comments Minister Clement made on the topic. Make no mistake, the essential service designation is a matter the Labour Relations Board could review, and it has. That stems from changes under the 2005 legislation. They aren't that old. There have been cases in which the Labour Relations Board reviewed the government's decision to determine whether a designated service was actually essential. In some cases, the government's arguments were not successful.
This bill is a vengeful response to the cases the government lost before the administrative tribunals. By cutting administrative tribunals completely out of the picture, the government has left unions only one recourse, judicial review. And since a court will conduct the judicial review, it will cost not only the union money, but also the government.
The bill sets out such a unilateral approach that it's worrisome for unions. Not only does the proposed legislation give the employer an exclusive right, but it also stipulates that nothing in the bill can limit that exclusive right. It's a dual safeguard. It will be the unions' responsibility to make their cases before the Federal Court to convince the court that the minister's decision was either wrong or unreasonable. With such general wording, it will be extremely tough to convince a court to intervene in any way.
Making a successful case before the Federal Court is a huge challenge, and just getting to that point will cost more time and money.
1:55 p.m.
President, Association of Justice Counsel
No, I think Ms. Roy zeroed in on the problem quite nicely.
1:55 p.m.
NDP
Raymond Côté NDP Beauport—Limoilou, QC
Would you like to respond to the chair's comments? Mr. Rajotte asked some questions, and I'm not sure whether you had the chance to answer fully.
1:55 p.m.
President, Association of Justice Counsel
If you mean in terms of the costs or procedures, I think my colleague hit the nail on the head as far as our problems with the bill go.
1:55 p.m.
NDP
1:55 p.m.
Managing Partner, Sack Goldblatt Mitchell LLP, As an Individual
I just note again that my friend from the Frontier Centre and I agree about the need for review. I think this committee ought to seriously take that into account in its deliberations.
1:55 p.m.
Conservative
The Chair Conservative James Rajotte
Thank you all.
I want to thank all the witnesses, both here in Ottawa and from the three cities that joined us by video conference. Thank you very much for your input into this budget bill. We appreciate your presence and participation here today.
This meeting stands adjourned.