Finance Committee on June 2nd, 2015

[John Farrell]

—it is covered, as all employers are required under part 3 of the Canada Labour Code to provide a policy with respect to sexual harassment.

All employers in the federal jurisdiction take this matter very seriously. We cannot tolerate sexual harassment, whether it be of anybody who's employed directly by the employer or of people who are on the employer's premises. We will take care of that.

Thank you.

[The Chair, Conservative, James Rajotte]

Okay. Thank you.

Thank you, Ms. Liu.

We'll go to Mr. Van Kesteren, please, for his round.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Thank you, Mr. Chair.

Thank you all for being here.

Just for clarification, I want to talk about the amendments to the Canadian Labour Code in two circumstances: those in which the internship is formally part of a program approved by a recognized school—we have talked about that for a secondary or post-secondary institution—and secondly, those in which the internship meets all six specific criteria.

I want to read those, just to put them into the record: the internship does not exceed four months, or the equivalent number of hours in a 12-month period; the internship is primarily for the benefit of the intern; the intern is supervised; the internship is not a prerequisite for a job in the employer's organization, nor is the employer obligated to give the intern a job; the intern does not replace any paid employees; and the intern is informed in advance in writing that he or she will not be paid.

I want to go to Mr. Farrell. I'm listening to the discussion, and there are good points made, and I think that passionately our two panellists from the educational institutions have laid them out well. But Mr. Farrell, you represent the public sector, which has the opportunity to possibly pay—or, if they're instructed by the government, may be able to do so. But I'm wondering whether you have any concerns about the private sector and how they would react to something over and above what the government is proposing at this time.

[John Farrell]

For the purpose of clarification, FETCO represents mostly private sector employers. Certain companies that are crown corporations also participate in FETCO. So we represent private sector employers.

We think that establishing these criteria in this bill will be helpful to interns and will require that employers follow certain procedures to ensure that they are hired to participate as interns, which does not place them in an employment relationship, in a manner that is going to benefit them. So we think that the criteria that have been established are going to require that employers make sure they apply appropriate criteria for the engagement of interns in their organizations.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

Now, in different situations in this committee—we've dealt with, for instance, some regulations that were applied to banking, for credit cards—we suggested self-policing, and it was quite successful, too. Is there room for that, possibly?

Ms. Seaborn, you talked about the lawyers, for instance. Quite frankly, to embarrass those organizations, if there really isn't any cause for what they're doing, if they're taking advantage.... Is there room for that? Is that something the government might want to pursue?

[John Farrell]

I'm not quite sure that I understand your question with respect to so-called self-policing.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

We asked for self-regulation in the banking industry. Is there room for that? Is there maybe somewhere we should go? I guess I could ask Ms. Seaborn and Mr. Champagne as well whether that's a possibility. I'm just concerned about the private sector. We all want to stop any practice that's wrong or that takes advantage of, or is harmful to, students. By the same token we have that balance.

Can all of you maybe just comment on that?

[John Farrell]

All I can say is that all of the employers that are members of FETCO recognize the responsibilities to treat people fairly, and they do have obligations to do that. As for this notion of some kind of self-regulatory process, I just don't understand how that would work. I think employers have obligations to protect the interests of employers, employees, and to protect the interest of anyone who is on their premises.

[Dave Van Kesteren, Conservative, Chatham-Kent—Essex, ON]

So you're quite satisfied with the legislation as it's being presented.

[John Farrell]

I'm satisfied with the direction that this legislation is going in. I think we would prefer that it not necessarily be fully played out in a regulatory process, because that could create uncertainty down the road, but we do believe in the importance of having a dialogue with all the stakeholders who are going to be engaged in improving internship arrangements in Canada.

[Claire Seaborn]

The conditions that you just listed are completely unenforceable. We can't rely on the federal sector employers to ensure that those conditions are being met for every intern. If interns feel as though those conditions are not met for them, then how are they to proceed? They can't file a complaint under the Canada Labour Code. They can't appeal to an educational institution because they're not overseen by one, and they'll have no choice but to turn to a lawyer, a lawyer who they can't afford, and if they can afford a lawyer, it will become quite a public mess for that employer. The appropriate solution is to get rid of these conditions that create ambiguity, vagueness, and possibly litigation, and instead have some clarity and only allow internships with educational institutions.

[The Chair, Conservative, James Rajotte]

Thank you.

Thank you, Mr. Van Kesteren.

We'll go to Mr. Adler, please.

[Mark Adler, Conservative, York Centre, ON]

Thank you very much, Chair.

Thank you, witnesses, for being here today. I appreciate all of your input.

I do want to begin first of all with Madame Legault. Do you agree with the principle of supremacy of Parliament?

[Suzanne Legault]

I do.

[Mark Adler, Conservative, York Centre, ON]

Okay, thanks.

You mention earlier that there are no precedents for retroactive legislation?

[Suzanne Legault]

That's not what I said. I said that there were. I said that I haven't seen a specific case like this one with retroactive legislation.

[Mark Adler, Conservative, York Centre, ON]

Okay, because there are multiple examples of—

[Suzanne Legault]

I agree.

[Mark Adler, Conservative, York Centre, ON]

The tax law, for example.

[Suzanne Legault]

I agree.

[Mark Adler, Conservative, York Centre, ON]

I would just like to read you something to you and get your opinion on it. The courts have recognized that there is a long-standing presumption in Canadian law that legislation does not have retroactive effect unless this is made explicit in the enactment or is a necessary implication of the language used. That principle has been used in multiple cases. So if there is explicit language in the law for the application to be made retroactive. If there is no explicit language of retroactivity, then that principle is not applied. This principle has been applied in dozens of cases that have appeared before the Supreme Court of Canada where that rule has been applied.

[Suzanne Legault]

And your question?

[Mark Adler, Conservative, York Centre, ON]

The presumption that you are making and the opposition is making is that there is no retroactivity. However, there is retroactivity if retroactivity is put into the law, logically speaking. And here we have the principle of retroactivity applied within this amendment. Is that correct?

[Suzanne Legault]

I can assure you that I agree that retroactive laws can be legal. I am not sure this one is. That's why my office is still exploring our options, because I believe the facts of this case and the retroactive application in this particular bill may very well raise constitutional issues in relation to freedom of expression and to the rule of law in Canada.

Now, we shall see.

[Mark Adler, Conservative, York Centre, ON]

Be that as it may, the principle of retroactivity is a long established one in Canadian law and has been affirmed by the Supreme Court on many occasions, and the principle of parliamentary supremacy is a long standing one in Canada and in our parliamentary tradition going back to Britain.

All members of Parliament, all 308 of us, were elected by popular vote and sent here to pass legislation on behalf of the Canadian people, and that's exactly what we have done here.

Every Canadian has the option of pursuing legislation on its constitutionality within the court system but, again, that is based on an opinion that specific people may have.

Is that correct?