Finance Committee on Nov. 20th, 2018

[The Chair, Liberal, Wayne Easter]

Mr. Julian, I don't know if you have a motion, but I know what you want to do. You want to start with the pay equity section, and we need unanimous agreement to do that.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you, Mr. Chair.

This committee has functioned in a very collegial way for almost all of our deliberations.

We have Ms. Malcolmson here, who within caucus is our expert on pay equity legislation. We have a number of amendments that touch pay equity.

Because Ms. Malcolmson is available for this morning only, I'd like to request of the committee that we start with the pay equity sections. That would be starting with division 14 and the subsequent amendments.

I've spoken with the clerk and that's very doable. It is a deviation from our normal practice. However, as a courtesy to Ms. Malcolmson, I'm hoping the committee will agree to start with the pay equity sections, division 14, and then go back to the normal practice, which is moving section by section.

[The Chair, Liberal, Wayne Easter]

Is there agreement to do that?

[Some hon. members]

Agreed.

[The Chair, Liberal, Wayne Easter]

We have one bit of a problem. I understand that the folks from the government department dealing with this section are not here as yet. If somebody could put the word out to them to get them here in case we have questions to them as witnesses, we will start. If we have questions for officials, we can pull them up to the table, but that's just to say they're not here as yet.

We've agreed to start at division 14, which is clause 416.

Go ahead.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much to all members of the committee.

I also have a motion that I would like to bring forward at this time, Mr. Chair.

[The Chair, Liberal, Wayne Easter]

Okay.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

I move:

That not withstanding the motion passed by the Standing Committee on Finance on October 30, 2018, the Committee, recognizing the extensive size and complexity of Bill C-86, acknowledge the need for a minimal discussion of proposed amendments and clauses irrespective of whether they fall before or after 9 p.m. on November 20, 2018—

That's today.

—and that the Committee, through its Chair, adjust its meeting schedule to provide the time required to facilitate such discussion.

I'm moving this motion, Mr. Chair. I provided adequate notice of 48 hours for this motion.

This is the most extensive omnibus piece of legislation we've ever seen in the House of Commons. The Speaker recognized that a few days ago, when he ruled that for the purposes of votes in Parliament this bill needed to be divided. It contains half a dozen pieces of stand-alone legislation. It has some good ideas, and it has some major flaws, as we saw identified by the witnesses who came before this committee. The witnesses said that, particularly when we look at the pay equity provisions, the bill as currently formulated and written will force women back to court if they want to achieve their pay equity rights. These are major difficulties, major flaws that need to be considered.

I understand that the committee passed a motion that basically requires all amendments to be deemed as considered by 9 p.m. this evening. For people who might be watching on television, what that means is that, regardless of where we are in the bill, there is no further parliamentary scrutiny, no further committee scrutiny. Basically everything falls down as of 9 p.m. tonight.

Mr. Chair, as you well know, we are going to have a number of procedural votes today in the House of Commons. This committee will have to interrupt its work numerous times, starting perhaps as early as one hour from now.

We have this timeline, this massive piece of legislation, major flaws that need to be addressed, and yet we have currently a requirement that at 9 p.m. tonight the bill passes as is, regardless of what discussions have occurred and what work remains to be done.

As I mentioned earlier, generally we're a collegial body. I think we would all agree as members of Parliament that we do have a responsibility to scrutinize this legislation, to improve it where it needs to be improved. It's impossible to do that with the current constraints that we have as a committee.

Here is what I would suggest. I'm certainly willing, I know Ms. Malcolmson is willing, and a number of members around this table would be willing to work as hard as we can this week, go through amendments tomorrow and Thursday as well, do whatever it takes to properly scrutinize this legislation to make sure we're getting the appropriate feedback and responses to our questions from ministerial officials, and do it right, so that when we finally send this legislation back to Parliament at report stage, the public can have some confidence that we have properly scrutinized this legislation, eliminated the flaws and improved the bill. We can't do that under the current constraints that force all of this bill to be considered and deemed adopted by 9 p.m. this evening.

[The Chair, Liberal, Wayne Easter]

Thank you.

The motion is in order.

Mr. Kmiec, I believe you wanted to speak on it.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Just in support of Mr. Julian's point, I agree with the contents of the motion. This is the second time I've done clause-by-clause consideration at the committee, and there are a lot of amendments that have been proposed specifically by the New Democrats, who proposed a lot of very technical amendments.

One of the highlights of clause-by-clause is having all the officials here before the committee so that we can duly consider every single component of the bill and ask whether our amendments attain the goals that we have in mind when we propose them. We don't have the advantage of being in a government caucus necessarily, so we can't lean on officials in government departments outside of committee time, typically.

I know last year when we did this clause-by-clause consideration, that was when we figured out whether subamendments were necessary and whether fine-tuning of certain amendments was necessary. A programming motion, the way it's always dropped down on this committee for the consideration of the BIA.... Typically, I would think we'd want to give ourselves enough time to be able to propose amendments that are reasonable and that attain some public interest goal, public good goal. It's not always possible.

We had a constituency week last week and, because of time needed for translation work from English to French and from French to English, it doesn't give a lot of time for stakeholder groups to come to us with fine-tuning amendments to the bill itself. When you have governments basically guillotining the committee's work at a certain hour of a day on a certain specific time, it doesn't really allow us parliamentarians to fulfill our work on behalf of our constituents, assuring them that we have done the work.

The most basic function of Parliament is to approve spending and things related to spending. I'm probably one of the few members who likes the estimates process, who looks forward to it and who reads the departmental plans for the finance department, and the BIA is integral to that process. Without the BIA compared to the budget document, as Mr. Julian said....

The Speaker has now for the second time ruled that the BIA went beyond the contents of what the budget said was permissible. This motion is completely reasonable, and what we should be doing is providing good, transparent government and holding them to account, which includes holding officials to account on the contents of the BIA.

I will be supporting the motion. It makes perfect sense to devote extra time for clause-by-clause consideration of different amendments and different parts of the BIA.

[The Chair, Liberal, Wayne Easter]

Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chair.

Personally, I am going to vote against this motion. I know I cannot refer to a debate that we held in camera, but I can say that it was included in the minutes. We actually passed the motion, the agenda and the schedule for studying this bill. We passed it only three weeks ago. The committee approved it without debate. It was even discussed at the Standing Committee on Finance's steering committee. If this motion is passed, it would be a bit like we were starting from scratch, which would be a little strange. We have a lot of work in front of us.

So I am going to vote against the motion in order to ensure that we can start the clause-by-clause consideration.

[The Chair, Liberal, Wayne Easter]

We'll have Mr. Julian, and then we'll go to a vote, if we could.

Go ahead, Peter.

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much, Mr. Chair.

I would like to react to Mr. Fergus' comment. I do not share his interpretation of the facts at all. Actually, the decision to limit the length of the debates in committee was made before we heard witness after witness tell us that the bill presents huge problems. We should therefore adjust and solve those problems, because our committee is responsible for doing so and for taking the time needed.

Mr. Chair, we also did not know at the time that we would have all those votes that interrupted our work on many occasions during the day and that will interrupt us again today.

We have before us the most mammoth bill in our history and it is causing us problems. We also have amendments and we are going to have to consider them. So, I beg you, do not tell us that the bill is going to be passed as is by 9 o'clock this evening. That, I feel, would be showing a lack of respect for Canadians who demand meticulous work from us, work that guarantees that the bill will go through all the usual stages and achieve the objectives that have been set. Canadians would be disappointed to learn that we are not even going to be studying all the provisions of the bill.

Let me invite you to consider something else, Mr. Chair. In the past, we had a government that did the same thing, the Harper government. Each time the Conservatives tried to rush bills through committee, the courts sent them back to do their homework.

That's my final point. Under the Harper government, we saw these bills consecutively rejected by the courts because the parliamentary scrutiny was not done effectively. You have half a dozen pieces of legislation that are rammed through Parliament, and then the courts say, “Hold on, the parliamentary work was not done; this bill does not stand.”

We risk doing the same thing with this bill. We have had testimony that indicated women will have to return to court to obtain their rights if this bill is not improved, if these flaws are not addressed. Ultimately, if what we end up doing is forcing the courts to come back and say the finance committee did not do its work adequately, I think it would be an embarrassment, and I think it would be something that the finance committee itself would regret.

We have an opportunity to work 24-7, and I'm certainly willing to do that and I think many of my colleagues are as well, so as not to have this current structure that means at 9 p.m. tonight everything in the bill is adopted, regardless of whether it has been properly scrutinized, whether the amendments have been considered, or whether the flaws have been addressed.

[The Chair, Liberal, Wayne Easter]

Do you want a recorded vote on this too?

We'll have a recorded vote, Mr. Clerk.

(Motion negatived: nays 5; yeas 4)

[The Chair, Liberal, Wayne Easter]

Just before we turn to Bill C-86, I have a suggestion for members to think about on the pre-budget consultations. We need to have that report tabled before we adjourn for Christmas. It looks like the library may have the report to us in draft form on November 23, which is a Friday, or at the latest November 26, which is a Monday. We won't deal with this in a motion, at the moment, but I would suggest to members that they think about having their recommendations in to the clerk by noon on November 29. It would give us the weekend to go through all of the recommendations.

That's just a suggestion for now. We'll deal with it later. I don't want to take that time. People can think about that in the background, because usually a lot of recommendations come forward from all members on the pre-budget consultations.

In order to start on Bill C-86 and the agreement we made earlier by motion, pursuant to Standing Order 75(1), consideration of clause 1, the short title, is postponed.

(On clause 416)

This clause starts the pay equity section.

To deal with pay equity, can officials come to the table in case there are questions from members? The officials, once they're all here, will be from ESDC, Treasury Board Secretariat and PSPC.

On clause 416, we'll start with amendment NDP-13. I would note that if NDP-13 is adopted, NDP-14 and NDP-15 cannot be moved due to a conflict of lines.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Chair, could you clarify that? Are you recommending that we do NDP-13 first?

[The Chair, Liberal, Wayne Easter]

Yes. We will do NDP-13 first. If it's adopted, NDP-14 and NDP-15 cannot be moved due to a conflict of lines.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Could I suggest that we move to NDP-14 directly? That's our preferred amendment.

[The Chair, Liberal, Wayne Easter]

Okay. Then you're withdrawing NDP-13 and going to NDP-14?

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Yes, please.

[The Chair, Liberal, Wayne Easter]

Okay. That's fine. NDP-13 is withdrawn.

Go ahead on NDP-14.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Thank you, Chair.

I want to preface my comments on this particular amendment by saying, on behalf of the committee, a tremendous thank you to our labour partners and particularly to the pay equity coalition, which has been pushing hard on this really since 2004. They testified before committee and provided significant detailed amendments. The NDP is not going to move anything that has not gone through that filter. We've done our best to try to take their advice to committee and turn it into our amendments.

Our NDP-14 has captured two significant errors that were identified by the coalition.

The first is the purpose clause of the pay equity act. They said very clearly that the current purpose clause is not acceptable as a human rights and as a pay equity statute. That is particularly because clause 2 contains the qualifying phrase “while taking into account the diverse needs of employers”. The first part of our amendment deletes that.

The witnesses said very clearly there's no reference to the diverse needs of employers in the Canadian Human Rights Act, and the current draft of the purpose clause is unforeseen in Canadian human rights legislation. It does not recognize Canada's commitments to human rights and its international obligations. It's a fundamental human right for all genders to be paid equally for work of equal value. For it to be screened through the needs of employers is unprecedented, and it significantly limits fundamental human rights to have such a qualification.

The witnesses said to the committee that anyone who felt comforted.... If the intention of the language of that qualification was to acknowledge that there are diverse types of employers with different realities and structures in the federal jurisdiction, the witnesses said that objective is accomplished in the operational sections of the act. There are different provisions for different sizes and different types of employers, processes for unionized and non-unionized workplaces, and other types of flexibility built into the regulation. The strong advice from the witnesses was to do part (a) of this amendment and remove that qualification.

The second piece, as captured in part (b) of our amendment, is to include in the purpose clause the requirement for pay equity to be clearly and directly spelled out in the body of the act, to ensure that the obligations and responsibilities are known to the parties. They said this was consistent with the recommendations of the 2004 task force, recommendation 8.2, which set out that the new federal legislation “provide that the employer is responsible for ensuring that pay equity implementation and maintenance are free of gender discrimination.” Ontario's Pay Equity Act sets out those same obligations.

I'm hoping the committee will take the advice of all of the labour parties that testified to committee, and most particularly the advice of the two human rights lawyers who appeared before you.

Thank you, Chair.

[The Chair, Liberal, Wayne Easter]

Is there anyone else in this discussion? I remind people that officials from ESDC are here if there are any questions to officials on any of these points.

Mr. Sorbara.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Thank you, Mr. Chair.

Good morning, everyone, and welcome to all the officials here today.

Yes, the BIA legislation does set out pay equity guidelines and brings forth pay equity, which is one of the things we can be very proud that we as a government and as a committee get the chance to examine. It has been talked about for a long time. Even as I stated yesterday in the House, equal pay for equal work, or correctly equal pay for the same duties, whether a man or woman, is something we fundamentally believe in.

With regard to the amendment brought forward, Member Malcolmson, I did hear as well the concerns regarding the four or five words of the diverse needs of employers. I did hear those comments during finance committee testimony.

I will say I disagree with the amendment. I disagree in terms of the interpretation of the diverse needs of employers. That does not in any way weaken the legislation in terms of what the legislation purports to do in bringing forth pay equity legislation.

I will just read my notes. The mention of “diverse needs of employers” in the act appropriately recognizes that the act establishes different obligations on employers based on size and union presence, and that the substantive rights that flow from the actual provisions of the statute are still valid, so the reference to the diverse needs of employers does not create in any sense or any form, or any shape, a loophole for employers.

I will be voting against the amendment brought forward by the honourable member from British Columbia, and I wanted to lay out my reasons why I will be doing so.

Thank you, Chair.