Environment Committee on Feb. 8th, 2011

[Robert Sopuck, Conservative, Dauphin—Swan River—Marquette, MB]

Just to address Ms. Murray's comments, and tangentially Ms. Duncan's, in Ms. Murray's case, when citizens brought forward this action and she says government didn't act, these governments are accountable and they have to balance all kinds of issues. Just because one group of citizens ostensibly doesn't get their way doesn't mean governments weren't responsible. Maybe in a case that requires the shutting down of a single-industry town to fulfill this small group's request, well, what does that do to the local community?

Again, any government that makes a decision will be held accountable at some point.

[The Chair, Conservative, James Bezan]

Thank you.

Are there other comments?

Let's call the question on amendment LIB-5.2.

[A voice]

No time left for the Conservatives?

[The Chair, Conservative, James Bezan]

Absolutely none.

(Amendment negatived: nays 5; yeas 4)

Let's move on to clause 24.

Are there any comments on clause 24?

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

I know that we've just disposed of the clause before, but there was only one question and comment I was going to make pertaining to that, given the fact that I didn't have time to speak to it under the time allotment for that particular amendment. My understanding—and maybe Mr. Woodworth can help me with this later, or anybody else who's involved in the legal field—was any application made before a Federal Court can be made in a jurisdiction outside of where the actual complaint is actually taken. So I'm wondering, and the only question I had was, could a group from Alberta, could a group from Newfoundland or Nova Scotia or New Brunswick make application to a Federal Court about a process that's happening in Quebec? That would be my only question.

[The Chair, Conservative, James Bezan]

A point of order, Monsieur Bigras?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Chair, it seems to me that we have already voted on clause 23(1). Mr. Calkins may be mistaken, but I would appreciate it if you would remind the committee that we are indeed on clause 24.

[The Chair, Conservative, James Bezan]

We are talking about clause 24. Clause 23 has been dealt with.

(On clause 24--Federal source or federal work or undertaking)

[Blaine Calkins, Conservative, Wetaskiwin, AB]

I'll start as soon as the interruptions stop, Mr. Chair.

Clause 24 actually changes the scope of what we're talking about quite a bit, Mr. Chair. On the surface of it, actually, clauses 24 and 25, because they're so intertwined, on first blush would look like important clauses to put in. I know that certainly from my perspective, as a Conservative, whistleblower protection is very important. It's critical to bringing transparency and accountability to governments and to all parties involved.

However, I think because of our process I have to speak specifically to clause 24. Because clause 24 is so small, it actually brings into question the scope of and circumscribes the powers in clause 25. I can't really speak about clause 24 without speaking about clause 25. I hope that Mr. Bigras will at least grant me that, when he won't grant me a chance to speak about clause 23. This brings into question clause 25:

Section 25 applies in respect of employees who are employed on or in connection with the operation of any federal source or federal work or undertaking and in respect of the employers of all such employees in their relations with those employees.

This clause doesn't make any sense, of course, unless you go over and read the first part of clause 25. In the very first section, subclause 25(1) says that:

Any person may file a written complaint with the Canada Industrial Relations Board alleging that an employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer has taken reprisals against an employee on a prohibited ground.

That seems well and good, Mr. Chair. What clause 24 does, as I interpret this particular clause, anyway, is broaden the mandate of the Canada Industrial Relations Board. Now, that brings us to several questions. Right now, my understanding is that the Industrial Relations Board deals specifically with the private sector. It does not include in its scope any ability to deal with the federal service. At least that's my take on what clause 24 would in fact do.

Now, that raises all kinds of alarm bells in my head right away, Mr. Chair. Because the Canada Industrial Relations Board gets its remuneration from the Government of Canada, the taxpayers of Canada, this clause immediately calls into question, in my mind, whether it shouldn't go before the Speaker of the House for a royal recommendation. It would require certain sums of money to be spent on the administration of this bill, should it come to pass.

Notwithstanding that, I want to talk a little bit about the Industrial Relations Board. Notwithstanding that the remuneration and travel and living expenses and compensation for all of the board members, as set out in the charter for the establishment of the Canada Industrial Relations Board, are there, what we're dealing with, specifically, in the Industrial Relations Board, mainly, are negotiations between unions and employers. It brings into question all of the laws this quasi-judicial body has for dealing with conduct between, particularly, union employees and their employers. It would deal with such things as reprisals by employers against said employees.

Clause 24, as I said, would broaden the Industrial Relations Board's jurisdiction to include employees of the federal public service. It would overlap with the jurisdictions of existing tribunals and would basically duplicate current protections against those reprisals, thus creating uncertainty and the likelihood of further litigation. The part I'm speaking to, of course, is the whistleblower protection in clauses 24 and 25. Hypothetically, down the road, if this bill should come to pass, because the mandate of the Canada Industrial Relations Board, as now set out through this act, has been broadened, would the current composition and the current appointments, meaning the directorship and the adjudicating body of the Industrial Relations Board, make sense? Or should that be revamped in light of the changes being proposed by this particular legislation?

Also, it overlaps with legislation that's already in place that protects federal public servants, such as the Public Servants Disclosure Protection Act and the quasi-judicial body set up within that and also with various sections of the Criminal Code that deal with reprisals from employers against employees.

Clause 24 coupled with clause 25 would basically change the jurisdiction of and the matters that can be considered by the Industrial Relations Board. They would broaden their mandate without actually changing the Industrial Relations Board's ability to get the right people in place to deal with the issues brought about by this legislation.

The Industrial Relations Board currently has jurisdiction over certain labour relations issues concerning employees who are employed on or in connection with the operation of any federal work, undertaking, or business, as defined in the Canada Labour Code.

The Canada Labour Code, Mr. Chair, applies to about 800,000 Canadians right now. Of course that would be any operating pan-Canadian or multinational organizations, if they were engaged in anything to do with the federal government.

The board currently has no jurisdiction over employees of a federal source, which is defined by the bill as:

(a) a department of the Government of Canada; (b) an agency of the Government of Canada or other body established by or under an Act of Parliament that is ultimately accountable through a minister of the Crown in right of Canada to Parliament for the conduct of its affairs; or (c) a Crown corporation as defined in subsection 83(1) of the Financial Administration Act.

Therefore, Mr. Chair, the inclusion or the wording of this legislation is so broad and so encompassing that not only do I think it might not pass the test of a royal recommendation, but it is broadening the jurisdiction of the Canadian Industrial Relations Board.

I don't know whether Ms. Duncan is trying to do this intentionally through her legislation or if it's a slip-up or it just wasn't looked at as thoroughly.

I have many more comments to make on this. But because we're dealing specifically with clause 24, this is the crux of the problem with clause 24, and unless I'm misinterpreting this, I don't think this is something that we on the Conservative side can support.

[The Chair, Conservative, James Bezan]

Thank you.

Other comments?

Mr. Woodworth. There are only about 45 seconds.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

I thought Mr. Calkins did a good job and I just wanted to sum up a little bit.

First of all, the Canadian Industrial Relations Board has jurisdiction only in relation to industrial relations and occupational health and safety for non-government employees.

The Public Servants Disclosure Protection Tribunal, on the other hand, has jurisdiction in relation to whistleblowing, but only for government employees.

This provision somehow doesn't match either of those particular situations.

[The Chair, Conservative, James Bezan]

Thank you.

Other comments?

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'd like to have clarification: are we currently reviewing clause 24, or are we reviewing clause 25?

[The Chair, Conservative, James Bezan]

We are reviewing clause 24. But since it refers to clause 25, they connect to the crux of the matter, which is that first subclause in 25.

We are voting on clause 24. I don't see any other comments.

(Clause 24 agreed to: yeas 6; nays 5)

(On clause 25--Filing a complaint)

Mr. Calkins.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Now that my eight minutes have been refreshed, Mr. Chair, this will be an opportunity for me to talk further about some of the issues that exist with this.

As I say, on first blush--and I commend Ms. Duncan for this--of course whistleblower protection is one of the most effective ways that any government can bring about accountability within its own ranks. Of course we always applaud those public servants who come forward and raise issues of concern. It serves the public interest and it also serves the interest of all taxpayers and of course the government, because we know that ministers only can go so far down into their departments.

Notwithstanding the fact that I was unable to convince my colleagues across the way that broadening the mandate of the CIRB to include federal employees was not a good idea, I'm now left with clause 25, under the heading “Filing a complaint”, dealing with subclause 25(1), which I've already read into the record. We can go all the way down through the various subclauses, all the paragraphs in (3)--those are the heart and the crux of the matter:

(3) For the purposes of this section, an employer has taken reprisals on a prohibited ground if the employee in good faith did or has attempted to do any of the following for the purpose of protecting the environment

The one that raises my eyebrows immediately, Mr. Chair, is paragraph 25(3)(d):

seek the enforcement of any Act of Parliament or any regulation made under an Act of Parliament or other statutory instrument that seeks to protect the environment;

I used--

[The Chair, Conservative, James Bezan]

I sometimes speak too fast for our interpreters, but could you just slow down your speech a little bit?

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Is this for your benefit, Mr. Chair, or for the--

[The Chair, Conservative, James Bezan]

No, for the benefit of our interpreters.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Okay. I'm sorry, Mr. Chair.

My apologies to the interpreters. I thought I was going slowly. I can actually go quite a bit faster. If you challenge me, I can do that.

Paragraph 25(3)(d) raises alarm bells in my head because this allows basically any citizen of Canada to second-guess the enforcement decisions made by any enforcement officer entrusted with the enforcement of any statute in Canada.

As a former conservation officer and national park warden, I can assure you that the last thing that I would need is somebody calling into question...or basically filing a complaint saying that in the opinion of the public I didn't do my duties as a member of a law enforcement authority charged with the responsibility of protecting the environment.

Notwithstanding that, for all of those paragraphs, such as applying for a review or an investigation, providing information to an appropriate authority for the purposes of an investigation, giving evidence in a proceeding under this act or regulations, or refusing to state an intention or refusing to do anything that is an offence under this act, basically these are already taken care of, Mr. Chair, in various other pieces of legislation that we currently have.

What it does is set out the process to the Canada Industrial Relations Board for employees--we've already talked about that--when it comes to the facing of reprisals. That would broaden the mandate of the CIRB without actually going through the appropriate perusal by, for example, the industry committee. This actually would be a little bit of a step out of the scope of the environment committee to look at, I think; however, we're all members of Parliament and we would be voting on this in the House anyway.

The government supports protecting workers from reprisals, as I've said. Of course, the Environmental Protection Act of 1999 already makes it an offence for an employer to dismiss, harass, or discipline any employee for the reason that he or she has reported a Canadian Environmental Protection Act violation or has refused to do something that would constitute an offence under that act. That legislation already exists, Mr. Chair. The Industrial Relations Board adjudicates industrial relations and occupational health and safety issues, so those employees are already covered under the auspices of that legislation.

The proposed complaint process under the CIRB would strain board resources. We already talked about the remuneration for the CIRB with the broadening of its mandate. It already looks after 800,000 employees in the private sector across this country. If we were to bring the entirety of the federal public service into that fold, one can only imagine with the price tag for that would be.

This clause, as I've said, overlaps with the provisions of the Canadian Environmental Protection Act, which already makes it an offence for an employer to dismiss, harass, or discipline any employee for the reasons that he or she reported a violation or refused to do something.

There is also overlap with provisions in the Criminal Code that prohibit employers from retaliating, or threatening to retaliate, against an employee for providing information to a person whose duties include the enforcement of federal or provincial law respecting an offence that the employee believes has been or is being committed contrary to any federal or provincial law by the employer, or an officer or employee of the employer, or, if the employer is a corporation, by one or more of its directors.

The Public Servants Disclosure Protection Act already creates the tribunal that already oversees this. This is the whistleblower protection that basically spans the entire public service. I can't help but think that any additional clauses or any specificity under clause 25 would only seek--by way of accident, I would presume--to create confusion and to create an opportunity for someone to not be able to defend themselves should they bring something forward under the Public Servants Disclosure Protection Act.

Furthermore, subsection 425.1(1) of the Criminal Code states:

No employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer shall take a disciplinary measure against, demote, terminate or otherwise adversely affect the employment of such an employee, or threaten to do so, (a) with the intent to compel the employee to abstain from providing information to a person whose duties include the enforcement of federal or provincial law, respecting an offence that the employee believes has been or is being committed contrary to this or any other federal or provincial Act or regulation by the employer or an officer or employee of the employer or, if the employer is a corporation, by one or more of its directors; or (b) with the intent to retaliate against the employee because the employee has provided information referred to in paragraph (a) to a person whose duties include the enforcement of federal or provincial law.

Mr. Chair, I hope I've convinced my colleagues across the way that bringing this forward already, with the current protections that already exist through the Canadian Industrial Relations Board, through the Public Servants Disclosure Protection Act and the tribunal created there, and also through the clauses in the Criminal Code, that adding this clause in this bill, should it come to pass, would only create more confusion and uncertainty. It would create opportunities for employers to have an out if this particular legislation isn't worded correctly, and provide fewer opportunities and less incentive should this clause come to pass. It would create that uncertain environment—fewer opportunities for the public service to come forward, which would be an unfortunate, unintended consequence of passing this legislation.

[The Chair, Conservative, James Bezan]

Thank you.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Yes, indeed, this provision, clause 25, coupled with clause 24, is consistent with other measures in law, specifically consistent with some provisions under the Public Servants Disclosure Protection Act, consistent under CEPA, and very specifically consistent with the Ontario Environmental Bill of Rights. It in no way contradicts those provisions. What it does instead is in fact provide legal certainty and clarity in the case of environmental protection officers on the specific actions they are charged to undertake under those particular statutes.

The whole purpose of this bill is it is intended as an omnibus kind of bill to extend those kinds of rights and protections to all government employees who are delivering the responsibilities under all federal environmental statutes, not only CEPA.

I do want to bring to the chair's attention that I intend to table an amendment. In fact, other members will be pleased to know that the amendment I do wish to table would, in subclause 25(1), strike out line 6 and add in “or the Public Sector Integrity Commissioner”.

Now that, of course, is a new agency. I'm advised that in fact the Canadian Industrial Relations Board is a relevant board in certain circumstances, and the Public Servants Disclosure Protection Act—

[The Chair, Conservative, James Bezan]

Are you moving that right now?

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I don't know when I should do it. I was speaking to the issues they raised.

[The Chair, Conservative, James Bezan]

We'll finish off speaking to the main.... This is all counting as time against clause 25. You can move your amendment at the end of it, and then we'll start the clock ticking again.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay, I just wanted to add.... I will speak to the amendment later. In fact, I think that is a valid point.