Bill C-2 (39th Parliament, 1st Session) Committee on May 31st, 2006

[The Chair, Conservative, David Tilson]

The chair sees a quorum and calls the meeting to order.

Good afternoon, ladies and gentlemen. This is meeting 16 of the legislative committee on Bill C-2. The orders of the day are pursuant to the order of reference of Thursday, April 27, 2006, Bill C-2, an act providing for conflict of interest rules, restrictions on election financing, and measures respecting administrative transparency, oversight, and accountability.

We have two witnesses before us this afternoon. Representing the United Steelworkers is Kristen Agrell, counsel in the legal department of the national office of the United Steelworkers union; and representing the Ontario Nurses' Association, we have Shalom Schachter, the interest arbitration and long-term care regulation lead on the provincial services team.

Good afternoon. The two of you can make introductory comments, which will then be followed by the questions of the committee. Thank you for coming. Please proceed.

[Shalom Schachter, Interest Arbitration and Long Term Care Regulation Lead, Provincial Services Team, Ontario Nurses' Association]

Thank you for the invitation to appear before your committee.

I'm going to restrict my remarks to three areas: the first area is the need to improve protection for whistle-blowers against retaliation; the second is the need to expand the whistle-blower protection beyond federal public employees; and the third is to expand the definition of wrongdoing and to narrow the scope for the refusal to investigate disclosures.

On the first point, in terms of whistle-blower protection, I think there is a recognition, given past events, that it is important for people to come forward with evidence of wrongdoing so that the public can hold their elected representatives to account. It needs to be recognized that there is a great fear in doing so, and that's why we need to have effective provisions against retaliation in order to encourage people to overcome their fears.

One of the things that's missing from the bill is a reverse onus clause. When an employer takes action against an employee, the employer knows the reasons for taking the action. The employee is not in a position to bring forward evidence that the reason the employer took the action is retaliation against whistle-blowing.

In most major labour legislation, there is a reverse onus provision with respect to unfair labour practices. The employer has to prove that the action taken against the worker was not motivated by a desire to punish a person for exercising labour rights. In normal arbitration, in terms of discipline, the employer has the duty to lead evidence of just cause and the worker does not have to prove there was no just cause.

We urge the committee to include a mandatory reverse onus clause in the legislation when employers want to take disciplinary action against people who have engaged in disclosure of information.

The other element is that there needs to be a broader justice with dignity clause. One of the major improvements of this bill over the previous legislation is the provision in proposed section 19.5, when the act is amended, that indicates when the commissioner decides to investigate a complaint, the employer has to reverse the action. For example, a worker who was fired would have to be reinstated, pending the investigation and the outcome of those proceedings.

It is a major improvement in the legislation, but it doesn't go far enough because it's contingent on the commissioner deciding to engage in an investigation of the complaint. The justice with dignity provision should be made applicable to everyone who has engaged in whistle-blower activity. Before employers are allowed to take disciplinary action on other grounds, they should have to prove it. Until that proof has taken place, they should not be allowed to impose the discipline on the worker.

Those are our comments with respect to the first issue.

With respect to the second issue, in terms of the scope of the protection, it needs to go beyond those who are in the federal public sector. In the “sponsorgate” situation, if the only people who had access to information about wrongdoing were employees of third parties who were dealing with the government, we needed them to come forward. I don't believe they would be covered under the existing provisions of the bill.

As well, there would be people under provincial jurisdiction. We have a situation in the city of Toronto, where I'm from. A police officer has come forward with allegations that the city police brass have swept concerns of police brutality under the carpet, and he is being disciplined for engaging in that public disclosure.

The federal Parliament has already engaged in legislation that affects the entire country. When it comes to making fraud a criminal activity, for example, the disclosure of fraud should be protected by federal legislation, even if it's done by people who are under provincial jurisdiction.

Finally, in terms of the third element, section 8 of chapter 46 of the previous legislation has very narrowly defined wrongdoing so that it only covers gross mismanagement, substantial danger, and serious breaches. Those criteria are far too narrow and are going to deprive the public of other disclosures that they need to know about.

Similarly, the criteria in proposed sections 24 and 19.3 of the bill, which give the commissioner the right to decline to engage in investigations or pursue complaints, are too broad and should be narrowed as much as possible so that as many disclosures as possible are investigated.

Those are my remarks.

[The Chair, Conservative, David Tilson]

Thank you.

Ms. Agrell.

[Kristen Agrell, Counsel, Legal Department, National Office of the United Steelworkers Union, United Steelworkers]

Thank you very much.

I'm here from the United Steelworkers. We appreciate the opportunity to speak to you.

As you know, the Steelworkers represent 280,000 members in Canada in all sectors of the working world. We encourage all our members to participate in and take control over their conditions of working and conditions of life. To that end, the Steelworkers are looking to the bill to provide what we have found workers need to have faith in their ability to contribute to a democratic system, which is information about the system and the ability to have input into the system.

The Steelworkers have taken a more general approach than my colleague in our response to this bill. We have identified three areas. There are areas where we strongly support the bill and think it should not be changed, areas where the bill is silent and where the Steelworkers think there's a strong need for action, and areas that have the potential to be great, but where we would suggest changes.

The Steelworkers strongly support the creation of the parliamentary budget officer. We feel that to give accurate information that's not swayed by political concerns is a move that's beyond due.

The reporting requirement for lobbyists we think is also important information for the public to have. Also, we are strongly in favour of ending the lobbyists' success fees, and also of ending corporate and union donations in elections. The Steelworkers have been active in assisting political parties, but there are other ways than financial to do so. Those are the areas the Steelworkers support.

There are also areas the Steelworkers would like to see added to this act, such as Access to Information Act reform, which had been discussed prior to the bill. Some federal bodies have been added and are now covered by access to information, but the system really needs a greater overhaul, in our opinion.

We're also disappointed that there's nothing in the bill that would affect leadership races, as opposed to elections, and nothing that speaks to members who are elected and then change their party affiliations. Those are areas where the Steelworkers feel the bill could be improved.

Finally, there are cases that the Steelworkers think have good potential. The creation of the Public Appointments Commission we think is a great thing, but in order for it to be effective, we would suggest that the committee introduce language that would require it to be independent of the Prime Minister's Office and to report on its functioning. And come to that, if possible, there should be language to require that it come into existence at all and that it can't be delayed by the refusal of the governing party to nominate someone to chair it.

Finally, with regard to whistle-blower protection, the Steelworkers echo and adopt the submission of my colleague from ONA. Unions have experience in how to protect workers from retaliation, and we agree that the public is best served if people can speak out before a situation reaches a point of major illegality or immediate threat to life.

Those are our submissions.

[The Chair, Conservative, David Tilson]

Thank you to both of you.

We now have a process by which four different caucuses have an opportunity to ask questions of you. There are about seven minutes for questions and answers.

We will start off with Mr. Tonks.

[Alan Tonks, Liberal, York South—Weston, ON]

Thank you very much, Mr. Chairman.

Welcome, Mr. Schachter and Ms. Agrell.

I note there's a congruity in two areas on page 7 of your overview, Ms. Agrell, on whistle-blowing protection and the concepts of reverse onus that have been mentioned by Mr. Schachter, so I'd like to question on that particular part.

We've had conflicting viewpoints with respect to the entrenching of the regime that would protect whistle-blowers around the use of a special tribunal that would be adjudicated through judges, as opposed to the labour arbitrations act and mechanism. It would appear from what you're saying that your comfort level--and I don't mean to put words in your mouth--would be to deal with an entity and regime that has an experience and an understanding of labour issues, labour law. And when it comes to whistle-blowers, you talk about the employer's duties, you talk about mandatory just cause, which obviously are mixed terms. They could be put into a judicial context as they could into a labour context.

My question is, which is more suitable? Is it to create a tribunal that would protect the rights of whistle-blowers through the regime that has been suggested? Or do you think it would be better to use the labour arbitrations act and panel and the experience that is gained in terms of protection of those rights?

[Shalom Schachter]

Obviously, there's a certain expertise that labour tribunals develop that the courts have recognized and give deference to, and we would be obviously more familiar and therefore more comfortable with having these proceedings before an appropriate labour tribunal.

For example, I think the act already indicates that if you're a federal public servant you could go to the Public Service Staff Relations Board, except if you're an employee of the Public Service Staff Relations Board, and then you go to the Canada board, and if our proposal is adopted, to extend this to people within provincial labour jurisdiction. They could go to their own labour boards or even have the option of going to the arbitration board process that's under the collective agreement.

If you're going to a labour board, as opposed to a new tribunal, the important thing is that this board should also have the power that's set out in proposed subsection 21.8 of the bill, to respond appropriately to the wrongdoer who retaliated. Labour boards generally only give redress to employees and don't engage, if you like, in punishment of the wrongdoer.

It's very important that proposed subsection 21.8 be enacted in some form, otherwise the retaliator will have no incentive not to engage in retaliation. The worst that can happen is that the person who discloses will be returned to work, but the wrongdoer, obviously, hopes there will be pressure on that person to give up before the case is addressed. There need to be penalties beyond redress to the whistle-blower to give an incentive to the potential retaliator not to engage in that conduct.

[The Chair, Conservative, David Tilson]

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Perhaps I could continue with the topic by looking at the public appointments commission that is vaguely suggested and may be withdrawn at this stage.

It seems to me that the Public Service Commission, under the Public Service Employment Act, with proper amendment to that act, and creating a role of the president of the Public Service Commission as an officer of Parliament, might play a part and apply a useful set of skills and knowledge and mandate to fulfill that need. I wonder if you could react to that.

[Shalom Schachter]

My submissions didn't address the Public Appointments Commission, but perhaps I do have some experience that would be relevant.

Prior to getting my law degree, I did work as a staff representative with the Public Service Alliance of Canada. The Public Service Commission, at least as it then was, was viewed as an arm of the employer in making appointments. Given my experience years ago, I would say that the public would not see this entity--unless it has changed--as being at arm's length from government and as being able to safeguard the public appointments neutrality.

[The Chair, Conservative, David Tilson]

Ms. Agrell, we don't mean to leave you out. If you have any comments, feel free.

You have about 30 seconds, Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

My only response to that, Mr. Schachter, would be that the composition and the legislation underlying the Public Service Commission have changed, but if it were to take on this additional role, it would be necessary for statutory change to create an independent president and commission with the necessary powers, one who would be an officer of Parliament.

[Le président, Conservative, David Tilson]

Ms. Guay.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chairman.

Welcome to the committee. My questions will be quite simple.

I know that, in each of your unions, you already have processes enabling people to make disclosures when something occurs. Am I wrong?

[Shalom Schachter]

In fact that's not the case. Employers generally take the view that workers have a duty of fidelity to their employer, and they do not appreciate workers going public with evidence of wrongdoing. Keep the dirty linen in-house, is the view, and in fact even in-house, there may be antipathy to going above the appropriate line of supervision. Even in unionized workplaces, there are not, at this point, proper procedures and protections for whistle-blowing.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Is the same true in the case of the Steelworkers Union?

[Kristen Agrell]

Some collective agreements can try to deal with the issue internally, but success with that sort of approach varies widely.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

So Bill C-2 is very desirable for you and would correct all the deficiencies there currently are in each of your unions.

[Kristen Agrell]

That is what we are hoping.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

There is a provision in the bill that states that, when a person makes a disclosure, he or she will be paid an amount of approximately $1,000. We're opposed to that. I'd like to have your opinion on the subject.

[Shalom Schachter]

I think the more important elements of the protection would be that no retaliation could take place, that before discipline could be imposed the employer would have to prove just cause, and that if retaliation was found to exist, not only should the worker get a remedy in terms of reinstatement and lost wages, but the retaliator should be punished.

There is no need for an economic incentive. In fact, part of the legislation stipulates that the disclosures have to be made in good faith. Offering some kind of monetary reward opens up the Pandora's box of having to question whether any disclosure is being made in good faith or strictly for the payment.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

It's called a witch hunt.

[Kristen Agrell]

The Steelworkers are also not in favour of the monetary reward, for the same reasons stated by my colleague.

[Monique Guay, Bloc, Rivière-du-Nord, QC]

Earlier you referred to confidentiality. When someone makes a disclosure, it's extremely important that that person be able to be protected in a confidential manner. Do you believe that Bill C-2 really contains everything necessary to protect the employee? Do you want to make amendments to improve the bill?

[Shalom Schachter]

Getting back to the justice with dignity proposal, if an employer who is governed by the bill felt that he or she had just cause to discipline an employee for something else, before the employee could be disciplined the employer would have to send an inquiry to the official within the department who was appointed under section 10 of the bill to deal with disclosures, to find out if the employee had in fact engaged in making a disclosure. If that was the case, then the official would advise that the employer could not engage in discipline until after just cause has been proven.

If that provision were put into the bill, it would give very good protection.