Bill C-86 (Historical)

Budget Implementation Act, 2018, No. 2

A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures

Part 1 implements certain income tax and related measures by
(a) introducing rules intended to provide greater certainty with respect to various tax consequences arising from certain foreign divisive reorganizations;
(b) ensuring that the existing cross-border anti-surplus stripping rule cannot be circumvented through transactions involving the use of partnerships or trusts;
(c) introducing rules to prevent misuse of the foreign accrual property income regime through the use of tracking interests involving foreign affiliates;
(d) ensuring consistency between the trading or dealing in indebtedness rules and the investment business rules within the foreign accrual property income regime;
(e) ensuring that the at-risk rules apply appropriately at each level of a tiered partnership structure;
(f) providing that the Minister of Public Safety and Emergency Preparedness can determine international operational missions for the purpose of the deduction available for income earned by members of the Canadian Forces or police officers on such missions;
(g) amending the synthetic equity arrangement rules and securities lending arrangement rules to prevent the artificial generation of losses through the use of equity-based financial instruments;
(h) ensuring that social assistance payments under certain programs do not preclude individuals from receiving the Canada Child Benefit;
(i) ensuring that an individual who is eligible to receive the Canada Workers Benefit can receive the benefit without having to claim it;
(j) introducing a refundable tax credit for the purposes of the climate action incentive;
(k) providing allocation rules for losses applied against Part IV taxes;
(l) preventing the creation of artificial losses on shares held as mark-to-market property by financial institutions;
(m) revising the rules relating to the non-partisan political activities of charities;
(n) ensuring that a taxpayer is subject to a three-year extended reassessment period in respect of any income, loss or other amount arising in connection with a foreign affiliate of the taxpayer;
(o) providing the Canada Revenue Agency with an extended reassessment period of an additional three years, to the extent that the reassessment relates to the adjustment of a loss carryback for transactions involving a taxpayer and non-resident non-arm’s length persons;
(p) extending the reassessment period of a taxpayer by the period of time during which a requirement for information or compliance order is contested;
(q) requiring that information returns in respect of a taxpayer’s foreign affiliates be filed within 10 months after the end of the taxpayer’s taxation year;
(r) enabling the disclosure of taxpayer and other confidential tax information to Canada’s bilateral mutual legal assistance treaty partners for the purposes of non-tax criminal investigations and prosecutions of certain serious crimes; and
(s) providing a deduction for employee contributions to the enhanced portion of the Quebec Pension Plan.
Part 1 also amends the Mutual Legal Assistance in Criminal Matters Act to, among other things, define the term “agreement” as applying, among other things, to tax information exchange agreements and tax treaties to which Canada is a party, and provide for orders to produce financial information for the purposes of investigation and prosecution of certain offences set out in subsection 462.‍48(1.‍1) of the Criminal Code. The enactment also amends paragraph 462.‍48(2)‍(c) of the Criminal Code to provide that information may also be gathered under Part IX of the Excise Tax Act and under the Excise Act, 2001.
Part 2 implements certain Goods and Services Tax/Harmonized Sales Tax (GST/HST) measures by
(a) replacing the requirement that GST/HST be collected on a sale of carbon emission allowances with a requirement that the purchaser self-assess that GST/HST;
(b) extending the assessment period for group registered education savings plan trusts that make a special relieving election in respect of their past HST liability;
(c)  introducing GST/HST rules in respect of investment limited partnerships;
(d) clarifying the intended tax policy of excluding books that are sold by a public service body from the GST/HST rebate for printed books;
(e) introducing amendments similar to those to the Income Tax Act to extend the assessment period of a person by the period of time during which a requirement for information or compliance order is contested; and
(f)  introducing amendments similar to those to the Income Tax Act to enable the disclosure of confidential information to Canada’s bilateral mutual legal assistance treaty partners, or to Canadian police officers, for the purposes of non-tax criminal investigations and prosecution of certain serious crimes.
Part 3 implements certain excise measures by
(a) broadening the refund regime in respect of excise tax on diesel fuel to allow a vendor to apply for a refund where a purchaser will use excise tax-paid diesel fuel to generate electricity, if certain conditions are met;
(b) introducing an anti-avoidance excise measure relating to the taxation of cannabis in respect of the rules establishing the value of a cannabis product on which an ad valorem duty is calculated;
(c)  introducing amendments to the Air Travellers Security Charge Act and the Excise Act, 2001 that are similar to those to the Income Tax Act to extend the assessment period of a person by the period of time during which a requirement for information or compliance order is contested;
(d) introducing amendments to the Excise Act, 2001 that are similar to those to the Income Tax Act to enable the disclosure of confidential information to Canada’s bilateral mutual legal assistance treaty partners, or to Canadian police officers, for the purposes of non-tax criminal investigations and prosecution of certain serious crimes; and
(e) making housekeeping amendments to the Excise Act, 2001 in order to ensure consistency between the English and French version of the legislation.
Part 4 enacts and amends several Acts in order to implement various measures.
Division 1 of Part 4 amends the Customs Tariff in order to simplify it and reduce the administrative burden for Canadian businesses and the Government of Canada by consolidating similar tariff items that have the same tariff rates and removing end-use provisions where appropriate. The amendments also clarify existing tariff provisions and make other technical amendments.
Division 2 of Part 4 amends the Canada Pension Plan to modify the calculation of the amount to be attributed for a year in which a contributor is a family allowance recipient and their first or second additional contributory period begins or ends.
Subdivision A of Division 3 of Part 4 amends the Trust and Loan Companies Act, the Bank Act and the Insurance Companies Act to, among other things,
(a) establish thresholds below which the acquisition of control of certain entities, or the acquisition or increase of a substantial investment in them, does not require the approval of the Superintendent of Financial Institutions;
(b) allow financial institutions to invest in the Canadian business growth fund; and
(c) ensure that customers can provide consent electronically to receive electronic documents.
It also corrects a reference to the Insurance Companies Act in the Budget Implementation Act, 2018, No. 1.
Subdivision B of Division 3 of Part 4 amends the Canada Deposit Insurance Corporation Act to, among other things,
(a) make technical amendments to clarify the method of calculating insured deposits, to remove outdated references, to repeal certain provisions not yet in force and to clarify that withdrawals made following the amalgamation of two or more member institutions or the continuance as a federal credit union will be considered to be made from pre-existing deposits and that the separation of accounts following the amalgamation is limited to a period of two years;
(b) exclude amounts borrowed by the Canada Deposit Insurance Corporation under paragraph 60.‍2(2)‍(c) of the Financial Administration Act from the calculation of the Corporation’s total principal indebtedness; and
(c) clarify that the liquidator of a member institution of the Canada Deposit Insurance Corporation must not apply the law of set-off or compensation to a claim related to insured deposits.
It also repeals two sections of the Financial System Review Act.
Subdivision C of Division 3 of Part 4 amends the Office of the Superintendent of Financial Institutions Act, the Trust and Loan Companies Act, the Bank Act and the Insurance Companies Act to, among other things, clarify that providing legally privileged information to the Superintendent of Financial Institutions does not constitute a waiver of the privilege.
Division 4 of Part 4 amends the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to remove the right of persons to decide not to proceed further with importing or exporting currency or monetary instruments that are required to be reported.
Division 5 of Part 4 amends the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act to, among other things, allow for the application, within the offshore area, of the provincial greenhouse gas pricing regime and to confer powers and impose duties and functions on the Canada–Newfoundland and Labrador Offshore Petroleum Board for the application of that regime. It also amends the Greenhouse Gas Pollution Pricing Act to provide that the provincial regime does not apply if the offshore area is mentioned in Part 2 of Schedule 1 to that Act. Finally, it amends the Offshore Health and Safety Act to postpone the repeal of certain regulations.
Division 6 of Part 4 amends the Canada Business Corporations Act to set out criteria for identifying individuals with significant control over a corporation. The Division also sets out a requirement for a corporation that meets certain criteria to keep a register of individuals with significant control and requirements respecting the information to be recorded in it. Finally, the Division includes applicable offences and punishments.
Subdivision A of Division 7 of Part 4 amends the Patent Act in order to
(a) provide a regulation-making authority for the establishment of requirements for written demands relating to patents;
(b) specify that an act committed for the purpose of experimentation relating to the subject matter of a patent is not an infringement of the patent and that licencing commitments that bind the owner of a standard-essential patent or the holder of a certificate of supplementary protection that sets out such a patent bind any subsequent owners or holders;
(c) expand the rights of a person in respect of a claim in a patent who meets the requirements to be considered a prior user;
(d) ensure that patent prosecution histories may be admissible into evidence for certain purposes;
(e) clarify when a late fee must be paid in respect of divisional applications as well as when the confidentiality period begins in the case where a request for priority is deemed never to have been made.
Subdivision B of Division 7 of Part 4 amends the Trade-marks Act to, among other things,
(a) add bad faith as a ground of opposition to the registration of a trade-mark and for the invalidation of a trade-mark registration;
(b) prevent the owner of a registered trade-mark from obtaining relief for acts done contrary to section 19, 20 or 22 of that Act during the first three years after the trade-mark is registered unless the trade-mark was in use in Canada during that period or special circumstances exist that excuse the absence of use;
(c) clarify that the prohibitions in subparagraph 9(1)‍(n)‍(iii) and section 11 of that Act do not apply with respect to a badge, crest, emblem or mark that was the subject of a public notice of adoption and use as an official mark if the entity that made the request for the public notice is not a public authority or no longer exists; and
(d) modernize the conduct of various proceedings before the Registrar of Trade-marks, including by providing the Registrar with additional powers in such proceedings.
It also makes certain housekeeping amendments to provisions of the Trade-marks Act that are enacted by the Economic Action Plan 2014 Act, No. 1 and the Combating Counterfeit Products Act.
Subdivision C of Division 7 of Part 4 amends the Copyright Act in order to specify that certain information is not permitted to be included within a notice under the notice and notice regime and to provide for a regulation-making power to prohibit further types of information from being included within such a notice.
Subdivision D of Division 7 of Part 4 enacts the College of Patent Agents and Trade-mark Agents Act. That Act establishes the College of Patent Agents and Trade-mark Agents, which is to be responsible for the regulation of patent agents and trade-mark agents in the public interest. That Act, among other things,
(a) requires that individuals obtain a licence in order to act as patent agents or trade-mark agents and that licensees comply with a code of professional conduct;
(b) authorizes the College’s Investigations Committee to receive complaints and conduct investigations into whether a licensee has committed professional misconduct or was incompetent;
(c) authorizes the College’s Discipline Committee to impose disciplinary measures if it decides that a licensee has committed professional misconduct or was incompetent; and
(d) creates new offences of claiming to be a patent agent or trade-mark agent and unauthorized representation before the Patent Office or the Office of the Registrar of Trade-marks.
That Subdivision also makes consequential amendments to certain Acts.
Subdivision E of Division 7 of Part 4 amends the Bankruptcy and Insolvency Act to provide that intellectual property users may preserve their usage rights when intellectual property rights are sold or disposed of in an insolvency proceeding or when the agreement relating to such property rights is disclaimed or resiliated in such a proceeding. It also amends the Companies’ Creditors Arrangement Act to provide that intellectual property users may preserve their usage rights when intellectual property rights are sold or disposed of.
Subdivision F of Division 7 of Part 4 amends the Access to Information Act and the Privacy Act to provide that the head of a government institution may refuse to disclose, under either of those Acts, information that is subject to the privilege set out in section 16.‍1 of the Patent Act or section 51.‍13 of the Trade-marks Act. It makes a related amendment to the Pest Control Products Act.
Subdivision G of Division 7 of Part 4 amends the National Research Council Act to clarify that the National Research Council of Canada has the authority to dispose of all forms of intellectual property that it develops, including future rights to such property and to provide the Council with the authority to dispose of real, personal, movable and immovable property, complementing the current provision in the Act that allows it to acquire such property.
Subdivision H of Division 7 of Part 4 amends the Copyright Act in order to modernize the legislative framework relating to the Copyright Board so as to improve the timeliness and clarity of its proceedings and decision-making processes. More specifically, it repeals spent provisions and
(a) codifies the Board’s mandate and establishes decision-making criteria;
(b) establishes new timelines in respect of Board matters, including earlier filing dates for proposed tariffs and longer effective periods for approved tariffs, and empowers the Governor in Council to make additional timelines by regulation;
(c) formalizes case management of Board proceedings;
(d) reduces the number of matters that must be considered by the Board;
(e) streamlines procedural steps across different tariff contexts, maintaining differences between them only where necessary;
(f) amends relevant enforcement provisions, including the availability of statutory damages for certain parties in respect of Board-set royalty rates and enforcement of Board-set terms and conditions; and
(g) modernizes existing language and structure for greater clarity and consistency.
Division 8 of Part 4 amends the Employment Insurance Act to, among other things, increase the maximum number of weeks for which parental benefits may be paid if these benefits are divided between claimants. It also amends the Canada Labour Code to, among other things, increase the aggregate amount of leave that may be taken by employees under sections 206.‍1 and 206.‍2 if that leave is divided between employees.
Division 9 of Part 4 enacts the Canadian Gender Budgeting Act in order to state the Government’s policy of promoting gender equality and inclusiveness by taking gender and diversity into consideration in the budget process. It also establishes related reporting requirements.
Division 10 of Part 4 amends the Bank Act to strengthen provisions that apply to a bank or an authorized foreign bank in relation to the protection of customers and the public. It implements enhancements in the areas of corporate governance, responsible business conduct, disclosure and transparency, and redress. It also amends the Financial Consumer Agency of Canada Act to strengthen the mandate of the Financial Consumer Agency of Canada and grant additional powers to that Agency.
Division 11 of Part 4 amends the First Nations Land Management Act to give effect to amendments to the Framework Agreement on First Nation Land Management respecting, among other things, procedures for obtaining community approval of a land code, the lands to which a land code may apply, the addition of lands to First Nation land by order of the Minister and the transfer of capital moneys.
Division 12 of Part 4 amends the First Nations Fiscal Management Act to, among other things,
(a) enable more Aboriginal organizations and First Nations to benefit from the provisions of the Act in order to strengthen their financial management systems and give them access to long-term financing;
(b) address certain administrative issues identified by the bodies established under the Act; and
(c) provide another option for First Nations to access moneys held by Her Majesty for their use and benefit.
Division 13 of Part 4 amends the Export and Import Permits Act to give the Minister of Foreign Affairs the authority to issue an import allocation for goods that are included on the Import Control List under subsection 5(6) of that Act.
Division 14 of Part 4 enacts the Pay Equity Act to establish a proactive process for the achievement of pay equity by the redressing of the systemic gender-based discrimination experienced by employees who occupy positions in predominantly female job classes. The new Act requires federal public and private sector employers that have 10 or more employees to establish and maintain a pay equity plan within set time frames so as to identify and correct differences in compensation between predominantly female and predominantly male job classes for which the work performed is of equal value. The new Act provides for the powers, duties and functions of a Pay Equity Commissioner, which include facilitating the resolution of disputes, conducting compliance audits and investigating disputes, objections and complaints, as well as making orders and imposing administrative monetary penalties for violations of that Act. The new Act also requires the Pay Equity Commissioner to report annually to Parliament on the administration and enforcement of the new Act.
Division 14 also amends the Parliamentary Employment and Staff Relations Act to provide for the application of the Pay Equity Act to parliamentary employers with certain adaptations and without limiting the powers, privileges and immunities of the Senate, the House of Commons and the members of those Houses.
It also makes the Minister of Labour responsible for the administration of the Federal Contractors Program for Pay Equity.
Finally, it makes related and consequential amendments to certain Acts and repeals the section of the Budget Implementation Act, 2009 that enacts the Public Sector Equitable Compensation Act.
Subdivision A of Division 15 of Part 4 amends the Canada Labour Code to, among other things,
(a) provide five days of paid leave for victims of family violence, a personal leave of five days with three paid days, an unpaid leave for court or jury duty and a fourth week of annual vacation with pay for employees who have completed at least 10 consecutive years of employment;
(b) eliminate minimum length of service requirements for leaves and general holiday pay and reduce the length of service requirement for three weeks of vacation with pay;
(c) prohibit differences in rate of wages based on the employment status of employees;
(d) address continuity of employment issues when a work, undertaking or business becomes federally regulated or in cases of contract retendering; and
(e) update group and individual termination provisions by increasing the minimum notice of termination.
Subdivision B of Division 15 of Part 4 amends the Canada Labour Code to allow the Minister of Labour to designate a Head of Compliance and Enforcement who will exercise most of the powers and perform most of the duties and functions that are related to the administration and enforcement of Parts II, III and IV of the Code.
Division 16 of Part 4 amends the Wage Earner Protection Program Act to, among other things, increase the maximum amount that may be paid to an individual under the Act, expand the definition of eligible wages, expand the conditions under which a payment may be made under the Act and create additional requirements related to Her Majesty in right of Canada’s right of subrogation in respect of payments made under the Act.
Division 17 of Part 4 amends the Bretton Woods and Related Agreements Act, the European Bank for Reconstruction and Development Agreement Act and the Official Development Assistance Accountability Act to harmonize the periods within which the reports under those Acts must be laid before Parliament in order to better communicate Canada’s international development efforts. It also repeals the definition of “official development assistance” in the Official Development Assistance Accountability Act and confers the power to define this expression by regulation.
Division 17 also enacts the International Financial Assistance Act, which provides the Minister of Foreign Affairs and the Minister for International Development with powers, duties and functions to support the delivery of a sovereign loans program, an international assistance innovation program and a federal international assistance program that promotes the mitigation of or adaptation to climate change through repayable contributions.
Division 18 of Part 4 enacts the Department for Women and Gender Equality Act which, among other things, establishes the Department for Women and Gender Equality to assist the Minister responsible for that department in exercising or performing the Minister’s powers, duties and functions that extend to and include all matters relating to women and gender equality, including the advancement of equality in respect of sex, sexual orientation, or gender identity or expression and the promotion of a greater understanding of the intersection of sex and gender with other identity factors. It also contains transitional provisions. Finally, Division 18 makes consequential amendments to other Acts.
Division 19 of Part 4 enacts the Addition of Lands to Reserves and Reserve Creation Act which authorizes a Minister, designated by the Governor in Council, to set apart lands as reserves for the use and benefit of First Nations. The Division also repeals Part 2 of the Manitoba Claim Settlements Implementation Act and the Claim Settlements (Alberta and Saskatchewan) Implementation Act.
Division 20 of Part 4 amends section 715.‍42 of the Criminal Code to require the publication of any decision not to publish a remediation agreement or order related to that agreement and of any decision related to the review of such a decision, to specify that the court may make the first decision subject to a condition, including one related to the duration of non-publication, and to allow anyone to request a review of that decision.
Division 21 of Part 4 enacts the Poverty Reduction Act, which sets out two targets for poverty reduction in Canada.
Division 22 of Part 4 amends the Canada Shipping Act, 2001 to, among other things,
(a) authorize the Governor in Council to make regulations respecting the protection of the marine environment from the impacts of navigation and shipping activities;
(b) authorize the Minister of Transport to
(i) make an interim order to mitigate risks to marine safety or to the marine environment, and
(ii) exempt any person or vessel from the application of any provision of that Act or the regulations if doing so would allow the undertaking of research and development that may enhance marine safety or environmental protection;
(c) increase the maximum amount of an administrative penalty that the Governor in Council may fix by regulation;
(d) authorize the Minister of Fisheries and Oceans, pollution response officers and accompanying persons to enter private property in the case of a discharge of oil from a vessel or oil handling facility; and
(e) double the administration monetary penalties for certain violations.
Division 23 of Part 4 amends the Marine Liability Act to modernize the Ship-source Oil Pollution Fund, including, among other things,
(a) removing the Fund’s per-occurrence limit of liability;
(b) in the event that the Fund is depleted, authorizing the temporary transfer to the Fund of funds from the Consolidated Revenue Fund;
(c) modernizing the Fund’s levy so that the Fund is replenished by receivers and exporters of oil;
(d) ensuring that the Fund’s liability for claims for economic losses caused by oil pollution aligns with international conventions;
(e) providing that the Fund is liable for the costs and expenses incurred by the Minister of Fisheries and Oceans or any other person in respect of preventive measures when the occurrence for which those costs and expenses were incurred has not yet created a grave and imminent threat of causing oil pollution damage;
(f) authorizing the provision of up-front emergency funding out of the Fund to the Minister of Fisheries and Oceans for significant oil pollution incidents;
(g) creating an expedited, simplified process for small claims to the Fund; and
(h) providing for administrative monetary penalties for contraventions of specified or designated provisions under that Act.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Mr. Chair.

I wanted to get a sense of the bereavement leave for parents whose child is a victim of crime or a victim of violence. How was that 104 weeks arrived at? Were they taking into consideration psychological impacts? Are there comparative bereavement leaves for child crime victims in other jurisdictions? I'm looking for the genesis of that 104-weeks figure in the BIA, and what the considerations were before that figure was arrived at.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

I received a lot of really heartfelt cards and emails from both the minister and you, Peter, and others. I appreciate all that, but this is not just about me, because that's already happened to me. It's about all the parents to whom it will happen in the future.

If you look at the contents of the BIA, to say that we do not have the expertise or all the information is an argument against the BIA itself, because it covers so much territory. In the BIA, we, this committee, are going to create a leave of 104 weeks for every employee who will be entitled to it “if the employee is the parent of a child who has died and it is probable, considering the circumstances, that the child died as the result of a crime.” We are creating a leave of 52 weeks. Every employee is entitled to this, it goes on, if they are “a parent of a child who has disappeared and it is probable, considering the circumstances, that the child disappeared as the result of a crime.”

This is a situation of a crime, which is a justice issue. We on this committee—on division, probably—have agreed to a great many sections that we cannot say we have in-depth information and witness testimony available to us on, which is why I think this amendment is infinitely reasonable. We spent just as much time, I think, on those types of sections as we have on this 12-week leave. It's nothing comparable to what's being suggested in these two sections for parents who are suffering a type of bereavement connected to a crime.

Again, I think we're well within the balance of what the committee can consider, because it's been put into the BIA by the government. Because the government put it into the BIA, it is fully within the rights of this committee to amend the BIA as we see fit after having heard testimony and considering subject matter that we deem necessary and valid to our interpretation of what should go into this and what should be excluded from it.

All the amendments proposed by the opposition have been turned down, some of them for good reasons, and some of them for bad reasons, and I accept those results, on division, of course. But in here, we're creating leave for other situations. I don't think it's a good argument to say that we should let another committee do the work or that this should be studied somewhere else because they have more fulsome information or a more complete set of witnesses for them to consider a 12-week leave when we are creating a 104-week leave in one situation, a 52-week leave in another, 17 weeks here and 37 weeks there. We are creating leaves already, as it is. Concerning the full impact of a 12-week leave, if we need more time to consider it, take the time. We can pass a unanimous motion. We can delay consideration of returning the BIA to the House for a day or two, and we could still have it there by Thursday and let your Department of Justice study this further or we could study this some more tomorrow and have officials return for another two hours.

The committee is master of its own domain, to use an old Seinfeld line. We could totally consider this some more. Take another day. I don't see us having to vote on this immediately, and having you all vote against it and us vote for it. As a solution, we could help parents here, parents going through bereavement, having lost a child, not because of crime but just because life happens. I really think we're doing a disservice to those people who will find themselves in this situation. You mention that you know some of the people who have gone through things like this. This will be beneficial to them.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair.

I'm pretty disappointed, too. We tried to accommodate the government to come back to this issue. Obviously, they were struck by the compelling reasons why this amendment should be adopted, which are in the scope of the BIA, so completely in order. Instead, we get to the end and we're told, “No, we're not going to be considering the amendment.” This is after dozens and dozens of opposition amendments have been turned down by this government. This is after the bill was flagged as being deeply flawed, yet the government just bulldozed through the amendments, refusing any amendment, and bulldozed through each clause.

We end up with a badly flawed bill, badly flawed, one that would be subject to legal challenge, because the government mechanism from the Prime Minister's office on down didn't allow for members to consider appropriate amendments, amendments that would have improved the legislation.

Now we have before us an amendment that is in the scope and that would definitely help people. This committee has the ability to adopt it and, in a very real way, provide some support for parents of a child who has died. There is nothing more tragic than a parent having to deal with the loss of a child. I know friends who have had to deal with it, and it is the most profound sadness and tragedy. We have an ability to provide some supports because of the huge gaping holes in the current legislation, which doesn't allow for bereavement leave when a child dies.

Yes, there are a few cases in which you could get three days of paid leave—as if, in any way, that compensates for the loss of a child or allows a parent to go through the intense grieving, the intense arrangements that have to be made. They're dealing with so many things at once, and the government says that three days is enough. They say that in some cases, with maternity leave benefits, it will apply. Yes, in some cases it will, but in most cases it won't. If it's a woman who has come through maternity leave and her child dies, after four and a half months it does not apply. After five and a half months, six and a half months, one year, two years, three years, four years—there is absolutely no application. For a father, for a non-birth mother, there is no application at all. One might say that if your reaction is profound enough, if you suffer severe depression and you have to take medical leave, it applies, but that's not what we're considering today.

We're not considering the “some exceptions”. We're considering the fact that this is a gaping hole in the legislation, and we have the power now around this table to fix it. We have the power, the ability. We have an amendment that is already here, obviously seriously considered by the government members, because they asked us for a break and they asked us to come back to consider it at the end. I don't think any member of the opposition thought that the consideration at the end would lead to the same casting aside of the amendment that we've seen with all the other opposition amendments. It's a question of how we approach governance. It's a question of how we deal with helping people. Right now this committee has the opportunity to fix that flaw in the legislation and provide for parental leave in the most tragic of circumstances, when a parent loses a child.

I hope government members will vote for this amendment, because it means helping parents at a time that is most tragic and most critical for them. Talking points simply won't address this situation. Saying that, yes, there are a certain number of cases in which maybe somebody can access this type of benefit or that type of benefit does not provide support in most cases. We've heard testimony to that effect. Let's get on with it, and let's adopt this amendment.

It's not as if the opposition has been asking too much. We've put forward dozens of amendments. This is the only amendment that the government would have said yes to—the only one. It's not as if the opposition has weighed in and tried to usurp government power. In fact, it's quite the contrary. I think the opposition amendments, the dozens we've offered, have tried to fix the evident and obvious flaws in this bill that we heard from repeated testimony in front of this committee.

At this point, after ramming through this legislation, after this bulldozer impact, the government has an ability to do one good thing. I think that's all we are asking for: that government members do one good thing today.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Thanks, Peter.

Obviously you had time to consider this, because that's why you asked to suspend the meeting and then consider it some. I can only assume that the department gave advice on what it thought was reasonable and then you checked in with your colleagues at some point. What you're saying now is that you should have just voted against it when the issue came up when there were more officials here earlier in the day. That's basically what I heard.

Mr. Sorbara, you said that committees are masters of their own domain. We're the masters of our own domain and we can amend the BIA right now. If you'd like to offer a subamendment or another member would like to, if there is concern over this difference between 17 weeks and 12 weeks, we can literally do that right now. If we got a commitment from you that you'd then say yes to the 17 weeks, we could raise it higher just to make sure there's no difference between the two.

I'd like the officials to explain that to us. Would there actually be a difference between the two? You could get a legal opinion from the Department of Justice so that we could then consider it, but to do that at this committee, then, we would have to unanimously approve a delay, like Mr. Julian had asked for earlier today, for the further consideration of clause 470—specific to this one clause—to give ourselves another day so that Department of Justice officials could give us an opinion on whether the 12 weeks would actually interfere with the 17 weeks.

The 17-week maternity benefit, as I talked about with the officials, doesn't apply to fathers. In a situation like mine, I would have gotten no leave, and that just seems patently unfair. For parents who lose a child, the father is just as affected as the mother, but in this scenario what we have before us is that the mother will be covered for 17 weeks, and if the child passes away a day after those 17 weeks, she will not be eligible for any other leave except for the five days—three paid and two unpaid.

What we're proposing to add is 12 weeks. Now, again, if there's a problem with the 12 weeks, we can change it to 17 weeks, or you can go and pass a unanimous motion to delay consideration of clause 470 until tomorrow or another day this week to give the Department of Justice officials time to write up an opinion on whether this would conflict with the labour code and moms would then lose their benefit access to the 17 weeks in such scenarios.

I actually think that's not true. That is very likely untrue. I cannot see a judge ruling like that. I cannot see anybody seeing the facts before them and saying, “No, you should lose access to it” in a particular case. I think it's a disingenuous argument to have delayed it until now and to now say, “this is the problem we have” and to quibble over the 12 weeks.

If that is the issue, then offer a subamendment. Show some goodwill here. We've offered an amendment. Amend it to 17 weeks and we can both agree that we've passed at least one opposition motion today, which hopefully will never benefit anyone in this room—heaven forbid. No one in this room should benefit from it. Hopefully, it will benefit somebody else out there like the people I met last week, the moms and dads who have lost children, and like the ones that Mr. Richards is trying to help with motion 110 at HUMA. That committee can do its work separately from what we're doing.

We can amend the BIA today and report it back to the House of Commons with an amendment that will help fathers and will help parents. That's all it's about.

[Deirdre Kent]

If I could just underline, perhaps, in Bill C-86, under clause 658, it does explicitly state that “a summary of Canada's activities under the Bretton Woods and Related Agreements Act that have contributed to carrying out of the purpose of this Act” would be reported.

As Ms. Pang said, the intent is to retain and increase the transparency of Canada's reporting on international assistance and have greater clarity. I don't think you would be losing the detail, but it will be subject to consultations on what this new report would look like, building on what we have currently.

[Gabriel Ste-Marie, Bloc, Joliette, QC]

Thank you, Mr. Chair.

Good afternoon, hon. colleagues.

I would like to specify right off the bat that my intervention will contain a question for the officials. Another question was for the government representative, but I believe she'll be leaving. If no parliamentary secretary is here, a Liberal elected official could perhaps answer them.

First of all, I'd like to provide a little context to members from outside Quebec. Thanks to visionaries like the late Lise Payette, who was a minister when René Lévesque was premier, Quebec has the best consumer protection framework in North America. The legislation is more specific than elsewhere. Because of our civil law tradition, we are used to prescribing and codifying everything. Above all, remedies are simple and free of charge for consumers. When important cases have to be dealt with by the courts, the Office de la protection du consommateur takes care of them on behalf of the aggrieved consumers.

The banks have never liked this Quebec difference. They argued for federal exclusivity to assert that they were above our laws. They argued for federal paramountcy in order to sweep away Quebec law. However, after losing their case before the Supreme Court in 2014, they came here to complain. This resulted in the Bill C-29, two years ago. The government affirmed the federal paramountcy of consumer protection for banks, but did not impose any real obligations on them. There was a huge outcry in Quebec. The government has backed down, which brings us today to Bill C-86, which is much more comprehensive than the bill introduced two years ago.

In contrast to Bill C-29 two years ago, Bill C-86 does not affirm federal paramountcy. The government's intention is clearly not to ignore the Civil Code of Quebec. Later, I would like to ask a question, both to the officials and to the parliamentary secretary, about the intent of the legislation and what is written in it. The intention is not to ignore the Civil Code of Quebec, the Consumer Protection Act, which follows from it, or the Office de la protection du consommateur, which applies the law and defends ordinary people.

Bill C-86 is indeed better designed than Bill C-29. While it imposes real obligations on banks, it has a major gap in terms of remedies. The only free recourse, the bank ombudsman, is neither really neutral nor decision-making. If the bank does not follow the recommendations of its ombudsman, what other recourse do consumers have? They may apply to the Federal Court, alone and at their own expense. If the case goes to the Supreme Court, it can cost up to $1 million. No one will go this far, alone in front of the bank's army of lawyers, to contest $50 in hidden fees. Expensive remedies like these are very ill-suited to an area such as consumer protection, where they are often small sums.

If the legislation specifies that Quebec law continues to apply, as the amendment suggests, consumers won't lose anything. If necessary, they may continue to file complaints with the agency if the bank does not comply with our legislation. The office may take the case at its own expense if it has to be brought before the courts.

In this regard, Bill C-86 creates uncertainty. As we know, the banks will continue to argue that they are above Quebec's laws. That's what they've always done. Since the new Bank Act will now contain a whole section on consumer protection, the Supreme Court may well agree with them. Quebeckers would then lose the free remedy they enjoy today and would have to rely on the very costly remedy provided by Bill C-86. It's a step back. I am sure that is not the government's intention. I would therefore like to ask the government's representative what the government's intention is in this bill.

The likely effect of Bill C-86 as drafted is problematic. Officials timidly confirmed a point at the technical briefing three weeks ago. I would like to ask them if Bill C-86 will set aside the Consumer Protection Act, as it relates to banks, or if it will create a vagueness that will lead to a lawsuit that would be settled before the Supreme Court?

That's why we're submitting our amendment. It states that the creation of these new federal obligations does not set aside provincial laws or prohibit enforcement actions, but rather assures us that Quebeckers will not lose out. I would really like to know if, in the case of federal banks, Bill C-86 sets aside the Consumer Protection Act.

Thank you, Mr. Chair.

[Peter Fragiskatos]

Thank you, Chair.

The existing legislation does indeed provide the minister the flexibility to designate a single not-for-profit external complaints body that all banks must use. Legislative changes to the complaints-handling process in banking should be examined in consultation with all stakeholders following an examination of the bank's internal complaints-handling process and the efficiency of external complaints-handling bodies. Finally, Bill C-86 would improve complaints handling in banking through new requirements for banks in the the way they record and report on complaints, and higher standards for external complaints-handling bodies.

I think these points speak to the amendment and why it's not a good way forward. Beyond that, these same comments also apply to NDP-9.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair.

We've heard testimony in front of this committee that raises concerns about having an external complaints body that is optional. Banks can basically choose their own external complaints body. The Canadian Association for Retired Persons and a number of other organizations all testified to the fact that this ambiguity is not helpful toward actually getting consumer complaints properly heard.

NDP-8 and NDP-9 are both endeavouring to designate, under the Canada Not-for-profit Corporations Act, only one external complaints body. It would be up to the minister which organization might be so designated. It doesn't prescribe one organization to the minister, but it does respond to the concerns we've heard from witnesses about making sure that the banks are effectively forced to go through an external complaints body that has some teeth. I think the complaints we're hearing from the public, because of the various organizations, some for-profit, that have been put into place, are about something that allows....

The opportunity of Bill C-86 is to work to designate, but to properly designate, a not-for-profit external complaints body. That would be, of course, for any person who has not had their complaint addressed through their member institution.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Mr. Chair.

I just want to read into the record an article from the Toronto Star. The headline is “Why haven't Any Harper-friendly charities been scrutinized”. It's by Edward Keenan. It was published on January 23, 2015. I'll read the following:

It turns out charities in Canada—at least the ones the government doesn’t like—are forbidden from “exercising moral pressure.” As if that isn’t the entire point of charitable enterprises. The absence of the profit motive and of self-interest in those involved in such an organization virtually defines a charity. Without those two things, what’s left is the pressure of morality compelling people to do the right thing.

But that’s illegal for a charity, it turns out.

This news comes to us courtesy of the Canada Revenue Agency, acting on a $13-million mandate from Stephen Harper’s Conservative government to take a close look at charities the government thinks are engaged in “excessive political advocacy.” This crackdown on politicized goodwill most recently busted the do-gooders at Dying with Dignity, who have been wielding contraband moral pressure in the service of their mission to provide information about patient rights, planning for end-of-life-care and the case for physician-assisted suicide. The auditors determined that its sins included “swaying public opinion, promoting an attitude of mind, creating a climate of public opinion” in addition to the already mentioned moral pressure tactics.

Now, to be clear, these charitable advocacy activities are only verboten if they might drive or prevent legislative change. The logic seems to be that tax breaks shouldn’t be used for any activities that might influence legislation. Except, of course, the tens of millions of dollars in tax exemptions and direct subsidies we give to political parties whose direct and immediate goal is to drive or prevent legislative change. Harper has actually been an innovator in this arena, inasmuch as, through “Canada’s Economic Action Plan,” he has abandoned mere tax breaks and the hassles of soliciting donations to spend millions of government dollars directly on advocacy to sway public opinion and drive legislative change.

The difference might be that in the latter cases, it is Stephen Harper himself creating a climate of public opinion and exerting moral pressure to achieve his own electoral and legislative goals. And in the case of charities, it is people who disagree with Harper doing it.

Is that an uncharitable assumption? Well, who has been caught up in the taxman dragnet? Environmental groups, free-expression advocates and the anti-poverty group Oxfam, which was informed that “preventing poverty” was not an allowable goal for a charity group.

Who has not been subject to an audit, at least not yet, that we know of? Well, conservative think tanks like the C.D. Howe Institute and the Fraser Institute, which regularly write policy papers directly advocating legislative change.

Or there's Focus on the Family....

Of course, believing that to be so doesn’t just put me on the wrong side of Canada Revenue Agency’s interpretation of the charity laws, it puts me on the wrong side of this government’s entire approach to leadership. Harper’s government has hunted down and exiled information and arguments that might feed good public discussion and lead to intelligent legislation at every turn—from disembowelling the census through shutting down hundreds of research facilities to a justice minister saying bluntly, “We don’t govern on the basis of statistics, we govern on the basis of what we hear from the public...”.

Harper and his ministers clearly want to hear from a public that is untroubled by research, untainted by statistics and, now, sheltered from the advocacy of pesky charities. The better to shape, it seems, a government that is free from evidence, reason and the pressures of morality.

I think that is the strongest contradiction to what Mr. Poilievre has just put forward, namely, that somehow Revenue Canada would not be penalizing or targeting particular charities and thus we do not need to make the changes that are inadequately and vaguely put into Bill C-86.

I cannot support his amendment.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Thank you, Mr. Chair.

Thank you, Ms. Malcolmson, for bringing this amendment forward.

On this amendment, in thinking about it, in the legislation itself, currently in those jurisdictions that would be covered by the legislation—the federally regulated industries that would be covered and those employees who would be covered by this act—they would be able to go to a pay equity commissioner who has the power to administer and enforce the act, to also assist those persons in ensuring that they understand their rights and obligations under the act and, most importantly I would say, to facilitate the resolution of such disputes. I think that is what is important under the provision here in the pay equity legislation that's contained in Bill C-86.

I understand your amendment, but the reason that I would disagree with the intent of the amendment is that with the legislation we get the umbrella of pay equity being implemented, and under the pay equity umbrella you have certain mechanisms at work that employees can bring about if there's a dispute, with the establishment of a pay equity commissioner, which is established under the legislation.

With that, I will not be supporting the amendment. The Canadian Human Rights Act is obviously very important. The Canadian Human Rights Commission is important as such, but at the same time, we have a pay equity act, we have the mechanisms under the pay equity act contained therein, and those mechanisms will allow employees to bring disputes to that and facilitate a resolution to those disputes.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Thank you, Chair.

This is an amendment proposed by the Equal Pay Coalition. It represents 44 different associations, businesses, professional women, unionized women, non-union women and community groups across the province of Ontario.

Ontario has had pay equity legislation for a long time. My late aunt Kim Malcolmson was an early worker in the Ontario Pay Equity Commission. Honestly, when I was in high school, she was my feminist aunt. I found her a bit radical at the time. I was so honoured that she was with me when I was sworn in as a member of Parliament. I gave her shout-outs throughout a lot of our pay equity debates. She was so proud that I was the voice that the NDP chose to advance our first opposition day motion. We were so glad to have had the government's support on that.

She died just about three months ago, just a couple of days after Patrick Brown stepped down. Actually, as a long-time CCF supporter and New Democrat, she left on a high note.

That said, the Ontario experience is very important in this work. I know that you heard from Fay Faraday and Jan Borowy who have extensive experience. They flagged that there were some fundamental pieces that needed to change in this legislation. They said in their testimony—and we've already lost this vote, but I'll say it again—that making fundamental human rights subject to the diverse needs of employers is non-negotiable. However, it remains because I lost the vote on that amendment.

Here is another one of their pieces of advice. This is in paragraph 103 of their submission. Their proposal is that deleting lines 2 to 5 on page 431 of Bill C-86 is the remedy. The rationale is that, in their own words, “Women should not be blocked from taking broad claims of systemic gender discrimination, inclusive of equal value claims, to the CHRA”, the Canadian Human Rights Act. They want this clause of the bill to be deleted. They say that women should be able to rely on section 7 and section 10 of the Canadian Human Rights Act instead when making equal pay for equal value claims.

I'll take you back to their opening testimony to committee. They said:

...there are a number of provisions you've included in the legislation that have already been found to be unconstitutional.

...the legislation actually gives less protection in some areas than the Canadian Human Rights Act currently does. For example, it has less protection in the compensation for part-time and temporary workers than currently exists....

Also the pay equity act does not close all the different gaps in compensation that are discriminatory.

They also said:

You've also included provisions that are unconstitutional and that the Supreme Court just struck down in May of this year, dealing with blocking retroactive pay for gaps that have been identified.

Mr. Chair, I propose our amendment, NDP-33, which is that Bill C-86, in clause 416, be amended by deleting lines 2 to 5 on page 431. This is the advice of the Equal Pay Coalition.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

Before we suspend for the next portion of the meeting, you have a small budget request in front of you for the video conferencing that we've been doing on the subject matter of Bill C-86.

(Motion agreed to)

Thank you.

I'll suspend for a few moments while we set up for a video conference for the next part of the meeting.

Thank you to all our departmental officials for being here.

[The Chair, Liberal, Wayne Easter]

Just before we turn to Bill C-86, I have a suggestion for members to think about on the pre-budget consultations. We need to have that report tabled before we adjourn for Christmas. It looks like the library may have the report to us in draft form on November 23, which is a Friday, or at the latest November 26, which is a Monday. We won't deal with this in a motion, at the moment, but I would suggest to members that they think about having their recommendations in to the clerk by noon on November 29. It would give us the weekend to go through all of the recommendations.

That's just a suggestion for now. We'll deal with it later. I don't want to take that time. People can think about that in the background, because usually a lot of recommendations come forward from all members on the pre-budget consultations.

In order to start on Bill C-86 and the agreement we made earlier by motion, pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed.

(On clause 416)

This clause starts the pay equity section.

To deal with pay equity, can officials come to the table in case there are questions from members? The officials, once they're all here, will be from ESDC, Treasury Board Secretariat and PSPC.

On clause 416, we'll start with amendment NDP-13. I would note that if NDP-13 is adopted, NDP-14 and NDP-15 cannot be moved due to a conflict of lines.

[The Chair, Liberal, Wayne Easter]

We'll come to order.

We'll be dealing with the clause-by-clause on Bill C-86. I understand Mr. Kmiec has a motion he wants to deal with first, and Mr. Julian has a proposal that will require unanimous consent.

We'll go to Mr. Kmiec.

[Randy Boissonnault]

The motion we have before us is about the supplementary estimates (A). We would therefore hear him speak about that, and not the Budget Implementation Act, 2018, No. 2