Bill C-2 (39th Parliament, 1st Session) Committee on June 13th, 2006

[The Chair, Conservative, David Tilson]

On a point of order, Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

There is confusion on my part. Are we not going to vote on clause 194, or do we have to deal with other clauses before we come back to it?

[The Chair, Conservative, David Tilson]

Yes, we have to deal with other clauses. We'll come back.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[The Chair, Conservative, David Tilson]

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

Thank you, Chair.

I'll move amendment NDP-20. This is to again look at to whom we can make the whistle-blower legislation available.

We want to expand whistle-blowing by replacing “public servant” with “any person”. It would give more scope to the bill and protection to the people under it.

[The Chair, Conservative, David Tilson]

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Mr. Chairman, I believe we must oppose this for the following reasons. The specialists will correct me if I'm wrong. First, proposed subsection 19.1(1) states: "A public servant or a former public servant..."

We previously voted so that a citizen could go through his or her member or file a complaint directly with the commissioner. I don't remember what it was about, but there is a procedure for citizens to do that. If we eventually agree to this amendment introduced by the NDP, it would be like the expression says, an "open bar". Everything we wanted to protect in the act by putting up walls would be undone to allow anyone to file a complaint anytime. That's how I understand it.

Am I wrong?

[Joe Wild]

Mr. Chairman, I think it's correct that the amendment would allow any person to file a reprisal complaint to the commissioner.

I guess the difficulty from a technical perspective is that with the defeat of NDP-19 there's now a disconnection between the two. It's difficult to actually see what that would do at this stage.

[The Chair, Conservative, David Tilson]

Yes, Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Further to what Mr. Wild said, I believe that I heard you say earlier that any person can bring information before the commissioner but cannot formally file a complaint. Perhaps you could confirm this. Is that the distinction?

[Joe Wild]

If a person believes there is a wrongdoing, he or she can bring information to the Information Commissioner with respect to a potential wrongdoing.

This section deals with a reprisal complaint. The entire reprisal section is built around the notion of protecting public servants and former public servants from reprisals and providing appropriate safeguards in the event they feel that they have been reprised against.

[The Chair, Conservative, David Tilson]

We're at amendment NDP-20.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

I just have one point, Chair. I appreciate the comments made in light of the fact that the previous amendment, NDP-19, did not pass, so the scope I hoped it would have captured is gone.

I'm curious, Mr. Wild, if there were reprisals against someone who was not a public servant but was related to someone who had suffered from reprisals, because of relationship or because they reported—as Mr. Owen said, anyone can report.... It's not out of the realm of possibility that one could suffer reprisals as a result of having disclosed. If that scenario were to happen, I'm just curious what protections would be afforded someone in that instance.

[Joe Wild]

The first issue on the motion, Mr. Chairman, is if the intent of the motion is to try to make available to any person the actual reprisal protections embodied in having the commissioner receive a complaint, investigate, and go through a tribunal, we're going to get back into the same constitutional issues I raised on amendment NDP-19. This act is primarily looking at things through the lens of labour relation remedies, so we're into employment labour relations. When you start to bring in people from outside the public sector, we get back into this question of whether or not there is any federal jurisdiction to actually do anything such as having a tribunal with the types of powers this tribunal has.

The protection provided in the act is one of prohibiting employers from taking reprisals against employees and tying a criminal offence to that prohibition.

[The Chair, Conservative, David Tilson]

Okay, Mr. Dewar?

Madam Guay, are you okay?

We will vote on NDP-20.

(Amendment negatived [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

Amendment L-22 is consequential to amendment L-21, which was deemed to be inadmissible; therefore this amendment is inadmissible.

We will move to amendment NDP-21 on page 153.

Mr. Dewar.

[Paul Dewar, NDP, Ottawa Centre, ON]

It's straightforward, Mr. Chair, as were the others. I move that Bill C-2, in clause 201, be amended by deleting lines 38 to 40 on page 144 and lines 1 to 3 on page 145.

It is the deletion of “grievance precluded”. I don't know if there's any comment from the panel on this.

[Joe Wild]

The effect of the amendment is it removes the restriction that prohibits people against whom disciplinary action has been ordered by the tribunal from grieving that to a labour board or under their collective agreement.

The reason for the prohibition is a tribunal is ordering the discipline. These are not decisions being taken by the employer, and normally what you'd be talking about in a grievance process is the employee grieving a decision of the employer. In this case, you end up with the employee grieving the decision of the tribunal. That results in a duplication of proceedings, because the tribunal orders are subject to judicial review to the Federal Court of Appeal. A mechanism is already provided if somebody has a discipline order brought to bear against him or her as a result of the tribunal ordering the employer to take a disciplinary action. The recourse would be to seek judicial review of that tribunal's decision.

[The Chair, Conservative, David Tilson]

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I'd like to ask a question through you, Mr. Chair, to Mr. Dewar.

The answer that the technical experts have given, is it something that satisfies you, or are you still...?

[Paul Dewar, NDP, Ottawa Centre, ON]

I think if what we're saying here is if someone.... In plain language, if you go down the road of using the procedures of Bill C-2 as a whistle-blower, then you would stay going down that path, and be subject to the decision that was made there. Then on the grievance side you would have to follow that path down.

Just as a thought, would it not depend upon the language within your collective agreement as to what other actions could be taken? In other words, if you aren't satisfied with the result of your actions or the decisions of the tribunal, you could still opt for actions within your collective agreement.

[Joe Wild]

I think it's important to be clear that the grievance that's being prevented here is if the tribunal has ordered the employer to discipline you because you have been shown to be a repriser. So you're not the whistle-blower; you're the person who has reprised against the whistle-blower. That's what that prohibition is doing; it is preventing the repriser from going down a path of grievance.

If you're the whistle-blower and you feel that the tribunal's decision is inappropriate or insufficient in some fashion, the act has put in place a judicial review mechanism through the Federal Court of Appeal.

[The Chair, Conservative, David Tilson]

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I don't want to add any, but I find this curious. It's like someone who likes unions and protection too much: at some point it becomes too much. If I understand correctly, that would mean that a person like Chuck Guité who is dismissed would be entitled to file a grievance, even if that person doesn't agree with the decision. Is that correct?