On the contrary, I was-—
Evidence of meeting #95 for Finance in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-377.
A video is available from Parliament.
Evidence of meeting #95 for Finance in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-377.
A video is available from Parliament.
4:45 p.m.
Conservative
4:45 p.m.
NDP
Hoang Mai NDP Brossard—La Prairie, QC
I was trying to help you out, Chair, in terms of what the motion said.
4:45 p.m.
Some voices
Oh, oh!
4:45 p.m.
Conservative
The Chair Conservative James Rajotte
After you score, you usually celebrate. I don't know what the issue is. I mean, you won the debate—
4:45 p.m.
Conservative
4:45 p.m.
NDP
Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC
Thank you very much, Mr. Chair.
I will continue this thrilling analysis by Professor Barré, of Laval University, of the validity of the bill and its constitutional aspect. He was referring to the stated objective of the bill or its underlying objective. We believe this is quite important. Is it deemed to be constitutional? If passed, will this bill result in endless, costly legal battles for everyone?
Mr. Barré continues:
With respect to the stated objective, it is in no way necessary to determine the author's state of mind. In other words, the fact that the bill's sponsor states that "labour organizations play a valuable role in society, … defending the rights of workers … and ensuring that they have proper compensation for the work they do" does not mean that his bill might not have as its object the regulation of labour organizations. On the other hand, if such a problematic state of mind existed, it might be useful to seek to identify it.
According to Russ Hiebert, the member of Parliament who has sponsored Bill C-377, the Income Tax Act provides "substantial benefits" for labour organizations House of Commons Debates, Official Report, 41st Parliament, 1st Session, December 5, 2011, p. 3978). At second reading, on February 6, 2012, Mr. Hiebert added that "it is only right for the public to know how that money is being spent" (House of Commons Debates, Official Report, 41st Parliament, 1st Session, February 6, 2012, p. 4859). Also at second reading, after stating that "[t]he purpose of the bill is not about requiring disclosure to union members", he stated that the bill's purpose is rather "requiring disclosure to the general public because the public is providing a financial benefit through the tax system. The public has a right to know how the benefit they provide to labour organizations is being used" (House of Commons Debates, Official Report, 41st Parliament, 1st Session, March 13, 2012, p. 6221). It seems extremely doubtful that the existence of a mere tax deduction could operate to create an "interest", let alone a "right" (a legally protected interest) in the public to know the full extent of labour organizations' financial administration, or at least all of the financial information covered by Bill C-377.
Certainly, we must consider that in the case of colourable legislation, the "stated objective" can sometimes be set up against the "real objective". However, in this case, the real objective of the legislation is no more nor less than the stated objective. Here, the overlap is complete, and the two objectives amount to only one. Whether we look at the summary of the bill, the content, or the statements made in the House of Commons, the stated objective is to regulate labour organizations. That is clearly the dominant nature of Bill C-377. If any tax nature were to be attributed to this bill, it would without question have to be found that any such nature is purely incidental, and irrelevant for constitutional purposes (in French, "sans importance au regard de la qualification de la loi sur le plan constitutionnel").
We now need to determine whether Parliament may validly enact regulation of this nature, and then examine the extent of federal jurisdiction in relation to labour relations, and more particularly the ability of Parliament to legislation in relation to the institution referred to as "trade union" or "labour organization"....
The fundamental rules governing the division of powers in relation to labour relations are well known. Since the decision of the Judicial Committee of the Privy Council in London in Snider, labour relations are, as a rule, under the legislative jurisdiction of the provinces of Canada, based on section 92(13) concerning "Property and Civil Rights in the Province" ("la propriété et les droits civils dans la province") (see Toronto Electric Commissioners v. Snider, [1925] A.C. 396). In other words, the matter of "labour relations" falls within the class of subjects described as "Property and Civil Rights in the Province".
As an exception to that rule, however, Parliament may legislate in relation to labour relations in the sectors of the economy that fall under its legislative jurisdiction under section 91 or paragraphs (a), (b) and (c) of section 92(10) of the Constitution Act, 1867. That exception to the general rule was recognized in l955 in the Stevedoring case (Reference as to the Validity of The Industrial Relations and Disputes Investigations Act, [1955] S.C.R. 529). The power to regulate a particular economic activity necessarily implies the power to regulate labour relations in works, undertakings or businesses whose activity falls under its jurisdiction.
That is why we have the Canada Labour Code.
Labour relations in those works, undertakings or businesses is in this case a vital part ("aspect essentiel") of its operation (see Commission du salaire minimum v. Bell Telephone Co., [1966] S.C.R. 767). In other words, the matter "labour relations" may also fall within the classes of subjects that assign to Parliament the power to legislate in relation to certain sectors of the economy. Works, undertakings or businesses that operate in those sectors of the economy are in fact commonly referred to as "federal works, undertakings or businesses". The Supreme Court of Canada has held that federal jurisdiction in relation to labour relations essentially depends on Parliament's legislative authority over a particular economic activity: "[Federal] jurisdiction over labour matters depends on legislative authority over the operation, not over the person of the employer".
The question of the constitutional validity of Bill C-377 thus brings us, in the words of the Canada Labour Relations Board, to an "unexplored corner of labour relations" (see Finn v. Canadian Brotherhood of Railway, Transport and General Workers, 47 di 49, p. 65). The extent of federal jurisdiction in relation to labour relations in federal works, undertakings or businesses is relatively clearly defined. 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?
4:50 p.m.
Conservative
The Chair Conservative James Rajotte
Just a moment. I understand there's....
Is there a problem with translation?
4:50 p.m.
NDP
4:50 p.m.
Conservative
4:50 p.m.
NDP
Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC
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...
5 p.m.
Conservative
November 26th, 2012 / 5 p.m.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
Thank you, Mr. Chair.
The orders of the day refer to clause-by-clause consideration of Bill C-377. What the member is now doing is basically preventing or depriving members from reviewing the clauses that the member, Brian Jean, has introduced. There are a number of amendments, which I support—surprise, surprise—that address the very concerns that Mr. Boulerice is now commenting on.
I have to emphasize that by commenting on them, he's actually misleading the public. These proceedings are televised, and he's repeated a number of times in the last hour and a half that he's had the floor that there are all kinds of negative consequences associated with Bill C-377, yet in truthfulness he has not at all admitted or at least even consented to the fact that the amendments, which he's aware of, that were tabled last Friday by Mr. Jean actually address these very concerns that he's speaking to right now.
For example, the amendments clarify that registered pension plans, health benefit plans, and other plans do not have to file information. They clarify that registered benefit payments to individuals like he was just referring to will not be disclosed. The amendments remove home addresses from filing requirements. They limit which salaries and business transactions are disclosed.
5:05 p.m.
Conservative
5:05 p.m.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
I'm getting to that.
The amendments reduce the cost of government for electronic filing and eliminate.... On this point, he said that the cost associated with the CRA report was largely due to the cross-referencing of data. These amendments eliminate the need for cross-referencing of data. That would eliminate the cost that he's now speaking to.
Mr. Chair, I ask that the member—
5:05 p.m.
Conservative
Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC
—consent to this committee completing its obligation to the public, which is to consider these clause-by-clause amendments, and no longer mislead the public with his ongoing diatribe.
5:05 p.m.
Conservative
The Chair Conservative James Rajotte
Okay.
I have Mr. Mai, Mr. Marston, and Mr. Cuzner on a point of order.
Go ahead, Mr. Mai.
5:05 p.m.
NDP
Hoang Mai NDP Brossard—La Prairie, QC
On the point of order, Mr. Chair, I would like to clarify regarding the—not that I wanted to instruct you—
5:05 p.m.
Conservative
5:05 p.m.
NDP
Hoang Mai NDP Brossard—La Prairie, QC
On this point of order, it was with respect to the fact that right now what we're doing is looking at the motion that we put forward. We are talking about the motion, and that's why I'm on the list and my colleagues are on the list. We want to talk about the motion that we have put forward. I understand that Mr. Hiebert is not very happy with the motion we have, but I think the important thing right now is for the Canadian public to listen to why we have put forward a motion and what our position is with respect to the motion. It's normal for us to debate something that we brought forward. As you know, Mr. Chair, we're just following the rules. Right now the rules are saying that we are allowed to talk about a motion that we have put forward.
Thank you.
5:05 p.m.
Conservative
