Finance Committee on May 15th, 2017

[The Chair, Liberal, Wayne Easter]

Thank you both.

Mr. Dusseault is next.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you, Mr. Chair.

I would like to thank the witnesses for being here today.

You said that most of the clauses would come into force only 36 months after the act received royal assent, because you want to consult and, most importantly, to inform the individuals affected, meaning employers and employees.

My question is more about what was done before the changes were proposed in Bill C-44 in the way of consultations not only with employers in the federal jurisdiction, but also with employees and unions. These are relatively major changes, which will have huge repercussions.

How many consultations were there before these changes were proposed? How long has it been in the works? You certainly didn't start working on it yesterday.

[Eric Advokaat]

Thank you. That's a good question.

There were two major consultations, with the most recent one taking place in January. We talked to a number of key stakeholders, mostly employee and employer representatives. We often talk to—

the Canadian Labour Congress and FETCO, which represents federally regulated employees in the transportation and communications sectors.

We spoke with them in January. There were other discussions between May and June 2016, and they mainly focused on the changes proposed in Part III.

For the most part, the comments that we have received from stakeholders have been focused on the administrative monetary penalties regime. They want to make sure that we don't immediately use AMPs to punish accidental non-compliance. We use a regime that starts with education and awareness raising and moves to voluntary compliance and counselling measures, and then on to orders and directions that may or may not immediately have administrative monetary penalties associated with them.

They would like to ensure that we continue to use that sort of scale, so that employers who are unintentionally non-compliant don't immediately get hit with administrative monetary penalties. That has been the focus of their remarks to date.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you for that information.

For my other question, I'd like to know how the new proposed standards compare with the provincial labour standards. The vast majority of employees in Canada are under provincial regulations. Labour standards sometimes differ, and it can be difficult for Canadians to know which ones apply to them.

[Charles Philippe Rochon]

Thank you for the question.

As you know, every jurisdiction in Canada has its own system. The legislation of each one is fairly different, but they tend to have some points in common. According to our analysis, all the measures proposed in clause 17 of the bill exist elsewhere in Canada. As I said earlier, from this perspective, it isn't particularly innovative. Basically, we really have examples to follow.

Not all measures are available in every jurisdiction. However, in the case of administrative monetary penalties, there are similar measures in occupational health and safety or labour standards legislation, or both, in Alberta, as well as in British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec and Yukon. Several jurisdictions have adopted such systems.

As for the power to designate offending employers, the majority of jurisdictions have it. With respect to protection against retaliation, the federal government was one of the few not to have adopted a scheme in this area. So we're now going to catch up with several other jurisdictions.

I won't give you all the examples, but let's say that our analysis gave us a bit of an idea of what was being done elsewhere. Care should be taken to include protections that are at least comparable to those available to employees subject to provincial legislation.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Thank you.

That's all for me.

[The Chair, Liberal, Wayne Easter]

Thank you.

Just before we go to Mr. Albas, we will not get to divisions 20, 21, 13, and 14 before question period, that's for sure. We will hopefully get to those shortly after six tonight.

For those of you who are sitting here waiting, you needn't wait. You can go and do whatever else you have to do until six o'clock.

To those who are leaving, thanks for your endurance

Mr. Albas.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Thank you, Mr. Chair.

To the officials, I certainly thank you for your presence today and your explanations and what you do for Canadians.

In this particular division, is there a privative clause that limits the judicial review of this new system?

[Charles Philippe Rochon]

Yes, there are privative clauses.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Can you explain to members of Parliament and the Canadian public what a privative clause does and what it is intended to do?

[Charles Philippe Rochon]

Just to give a bit of context, there are privative clauses and there have been such clauses in the past in the Canada Labour Code. The objective is to ensure to the extent possible that existing adjudicative functions under the code are not challenged unduly in court.

Essentially that doesn't prevent entirely a judicial review of the decision of an adjudicator or referee or of the OHS tribunal, or, once everything is transferred, the Canada Industrial Relations Board. It does, however, mean that any court should give a fairly high degree of deference to any decision made by the administrative tribunal, so in this case, the Canada Industrial Relations Board, or any of the other bodies before the transfer is done.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Just as long as the board is operating along the principles of procedural fairness—

[Charles Philippe Rochon]

Absolutely.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

—then obviously by the principles of natural justice, this would not preclude someone from taking action if it were found that the board did not operate on either of those two.

[Charles Philippe Rochon]

It does not preclude...and right now obviously the Canada Industrial Relations Board already has a number of powers under part I of the code. There is a privative clause there, but that does not prevent somebody from challenging a decision, and that's been done, at times successfully, in the past, so that will not change.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Is there a minimum or maximum claim through this system?

[Charles Philippe Rochon]

Just to clarify, do you mean a claim for unpaid wages?

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Yes, I mean for wages, etc.

[Charles Philippe Rochon]

Basically there is no maximum in terms of amounts; however, there is a maximum period that can be covered, and this is what will actually be changing.

If somebody files a complaint for unpaid wages, and let's assume the person is still employed with the employer, it will be possible to look back in time up to two years from the date of the complaint for any wages that were not paid during that period. From that perspective, if there was $5,000 in unpaid wages over time—with vacation pay, etc.— within that two-year period, it would be possible to recover that amount, so there is no set—

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

What is the current—

[Charles Philippe Rochon]

Currently it is possible to go back 12 months, or up to 24 months for vacation pay. What changes now is that it will be 24 months for any wages or other amounts provided for under part III.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Just following up on Mr. Dusseault's questioning, is it similar to provincial regulations, or is it stand-alone from the rest of the provinces?

[Charles Philippe Rochon]

Our standards will be more similar to those of Ontario. Several jurisdictions have put certain limits in terms of time period that can be covered by payment orders. It will make it more generous than it was before in terms of recovering wages, but it would be within the norm of provincial legislation.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

There's still a certainty for employers, and they are going to be, as you said, not only consulted but also, I'm sure, given some education materials about the new system, how it works, how they can protect their rights as well.

[Charles Philippe Rochon]

Absolutely. We need to make sure that everybody is well aware of the obligations. I should perhaps mention as well there will be transitional provisions, so things will apply as of the date of coming into force. We're not going to go back in time, and penalize individuals for something on which they had no knowledge that they had particular obligations.