Bill C-377, however, raises the question of the limits of federal jurisdiction: does it authorize Parliament to legislate in relation to the "trade union" as an institution, not in its capacity as bargaining agent under an otherwise validly enacted system of collective bargaining? That is ultimately the fundamental question raised by Bill C-377.
... While the issue has not often been discussed, it is in fact not novel. In 1968, after noting that the regulation of unions "probably" came under the legislative jurisdiction of the provinces based on section 92(13), "Property and Civil Rights in the Province", the Woods Report concluded that "any attempt to enact federal legislation in relation to trade unions in the strict sense would probably fail, in whole or in part.… Parliament may enact optional legislation, but it could not require that all unions comply with the standards it [imposed]" (para. 758).
I believe that is entirely consistent with our study of the bill and the motion that the official opposition has presented to committee members.
In light of the opinions stated by those authors, we can begin to understand why the Canada Labour Relations Board might have described the subject as an "unexplored corner of labour relations" (see supra). It seems to us that those authors were wary of addressing the issue of legislative jurisdiction in relation to the trade union to the extent that the union has "independent constitutional value" ("un aspect constitutionnel indépendant"), in the words of Bora Laskin. Those authors seem to be referring only to the issue of the division of legislative powers in relation to the matter "labour relations", without addressing the issue of a trade union having independent constitutional value.
Certainly, Parliament's exceptional jurisdiction authorizes it to legislate in relation to a trade union in its capacity as bargaining agent, within the meaning of section 3 of the Canada Labour Code, in connection with a federal work, undertaking or business. For example, it may validly legislate in relation to: the source deduction of union dues by the employer (s. 70), voting prior to a strike being called (s. 87.3(1)), the union's duty of fair representation (s. 37), inclusion of a clause requiring union membership in a collective agreement (s. 68), and do on. In all those cases, the federal regulation essentially relates to the union in its capacity as bargaining agent. However, the regulation contemplated by Bill C-377 is clearly not of that nature: its subject is the union as an institution, not in its capacity as bargaining agent within a system of industrial relations instituted by valid legislation: the Canada Labour Code.
In addition, we know of no authority that would enable Parliament to legislate in relation to a trade union as an institution. In other words, to the extent that the union has "independent constitutional value", Parliament has no authority to regulate it. The provincial legislatures alone have that kind of authority, based on section 92 (13) of the Constitution Act, 1867: "Property and Civil Rights in the Province". Federal jurisdiction is clearly limited to labour relations in federal works, undertakings or businesses, whose economic activity falls under the exclusive legislative jurisdiction of Parliament under the Constitution of Canada.
If Professor Hogg's opinion (see supra) were to be taken literally, we would have to understand that Parliament could legislate validly in relation to trade unions in connection with their status as bargaining agents, but only in relation to unions whose members are employed in the operation of a federal work, undertaking or business. That proposition must be rejected in its entirety. Many unions are certified under both the Canada Labour Code and provincial legislation.
Professor Barré concludes as follows:
Having concluded this legal opinion, we are of the opinion that the real purpose of Bill C-377 is to regulate labour organizations. Because this is a blatant case of colourable legislation, it is obvious to us that this bill is an attempt to regulate labour organizations by subjecting them to an obligation to provide financial information, which obligation has no genuine connection with the tax provisions set out in the law, whether it be the tax exemption enjoyed by labour organizations under section 141(1)(k) of the Income Tax Act or the deduction that taxpayers may claim in calculating their income under section 8(1)(i).
With respect to Bill C-377, it is not a matter of deciding its sphere of application, as is commonly the case in litigation relating to the division of legislative powers in the field of labour relations. If it were a case relating to the sphere of application of legislation that was otherwise validly enacted, its sphere of application would then have to be limited to those labour organizations that act as bargaining agents in connection with the operation of a federal work, undertaking or business. The question that arises here, however, is rather the question of its constitutional validity: Parliament has no authority to regulate 15 unions as a distinct subject. Its only power is limited to labour relations within federal works, undertakings or businesses. A union that has the status of "bargaining agent" in connection with the operation of a federal work, undertaking or business cannot be described as a federal work, undertaking or business.
... If Bill C-377 were to be enacted and brought into force, the legislation certainly might be declared to be "of no force and effect" by the Canadian courts, based on section 52(1) of the Constitution Act, 1982: its content is inconsistent with the division of legislative powers set out in the Constitution of Canada.
This is a legal opinion that was requested by a Quebec union, the Syndicat des professionnelles et professionnels du gouvernement du Québec. It shows the legal labyrinth in which Bill C-377 could put us if it were to be passed by the House of Commons.
Let us talk about the costs that the Canada Revenue Agency disclosed to us this morning and that are based solely, I would point out, on approximately 1,000 organizations, which probably represent 4% of the organizations that will be required to complete reports. The work of the Canada Revenue Agency, which handles the files of charities, costs more than $33 million a year and employs 33 full-time federal public servants.
Enormous additional legal costs could be incurred if, by some unfortunate chance, this bill were ever supported by the majority of members. That would result in costs to pension funds and trusts that must first serve their members. There would also be costs to labour organizations, which would have to deal with red tape instead of doing their job, improving working conditions and working with employers to find solutions, improve our technology and work organization, introduce more health and safety rules in workplaces to prevent hundreds of workers from losing their lives every year because they work at insufficiently regulated job sites or workplaces.
The unions should not spend their time dealing with red tape but should work to improve the lives of millions of workers. The unions' campaigns also affect aspects of our community and social lives that are beneficial for everyone. I mentioned health and safety regulations, but we could also cite public pension plans, pay equity, minimum wage and minimum hours of work. When unions are able to do their job to improve everyone's lives, that is good for society as a whole. We have a private member's bill that will be extremely costly for taxpayers and that could well deprive unions of their means of action to improve the lot of our communities.
Workers whose wages and bonuses rise will spend in their community. So that benefits all the people with whom they do business.
Going back to the idea of the people with whom they do business, if ever a business that delivers services to citizens also does business with a labour organization, under Bill C-377, its professional, trade and strategic secrets will be made public. That will be extremely harmful for our economy as a whole.
I hope my colleagues will allow me to do this, but I would also like to raise some concerns that have been reported to us. I am taking advantage of the fact that this is November 26 in order to do it. I would like to talk about the Canadian Football League Players' Association. On the day after the Grey Cup match, I believe it would be appropriate to hear from the players, who, among other things, gave us such a great championship match, which was won yesterday by Toronto, which unfortunately had previously beaten Montreal.
What do the Canadian Football League players say about the bill as it concerns pension plans, for example? Mr. Hiebert has declared that the purpose of the bill is to improve union transparency, but the legislation is drafted in such a way that it will require extensive and onerous financial disclosure from any pension plan that has any unionized beneficiaries. This is so even if none of the money in the pension fund originates from a union. This simply does not make sense and is not consistent with the objectives Mr. Hiebert stated in his presentation.
Bill C-377 applies to both labour organizations and labour trusts. The definition of "labour trust" includes a trust or fund that is established or maintained in whole or in part for the benefit of a labour organization, its members or the persons it represents.
That definition is not limited to trusts and funds that originate with unions or are funded through union dues. The definition of "labour organization" would clearly capture the Canadian Football League Players' Association and thus the definition of "labour trust" would similarly capture the Canadian Football League Players' Association's pension plan as it is a trust or fund that is established for the benefit of our organization.
Our Canadian players, who have reservations about the scope of this bill and the burden it represents, fear they may be subject to extremely restrictive regulation and be required to deal with red tape rather than do their job. Like Commissioner Stoddart and the people from the Canadian Bar Association, they are concerned about the consequences for participants' privacy. Here is what they say on the subject:
One of the aspects of Bill C-377 that most concerns the trustees of the fund is the impact that this legislation will have on privacy. Currently, the legislation calls for the disclosure of a set of statements for the relevant fiscal period setting out all transactions and disbursements over $5,000. The statements must include the name and address of the payer and payee, the purpose and description of the transaction and the specific amount that has been paid or received. The language of the bill is so broad that this disclosure requirement would seem to include disclosure of transfers of pension entitlements of the fund's beneficiaries. In a defined contribution plan such as that of the association, each plan member has a specific account which holds all contributions made on their behalf. Once that member reaches retirement, the assets held in the account will be used to purchase an annuity, a life-income fund, or other locked-in retirement income vehicle. Members who are U.S. residents may, in some circumstances, transfer these funds out of Canada, subject to withholding tax. These transfers will typically be quite large and will easily surpass the $5,000 threshold. When these payments are made, Bill C-377 requires the disclosure of the amount paid, the payee's name, address and the purpose and description of the payment. This information must be presented to the minister and will be made available...