Government Operations Committee on May 15th, 2023

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

If my fellow members agree, Mr. Chair, I recommend that it be withdrawn in favour of amendment BQ‑2.

[The Chair, Conservative, Kelly McCauley]

We'll assume that you don't move it, and we'll go right to the next one, which is BQ-2.

Thanks, Mr. Fergus.

We're on BQ-2 now, colleagues, which is on page 5.

Go ahead, Ms. Vignola.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Our amendment is simply to delete lines 3 to 9 in clause 3 on page 2. With these lines, the bill would need a royal recommendation, but a private member's bill cannot receive a royal recommendation. That's why the Liberal Party had proposed the same change in G‑2.

[The Chair, Conservative, Kelly McCauley]

Thank you, Ms. Vignola.

Again, like the previous one, if BQ-2 passes, NDP-2 cannot be moved due to a line conflict. They're both modifying line 7 on page 2.

Shall BQ-2 carry on division, colleagues?

(Amendment agreed to on division [See Minutes of Proceedings])

We're now on G-3, which is on page 7 of the package.

Is that yours, Mr. Fergus?

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

Yes. Thank you.

This sets out the entire frame for what “reprisal” means and what would be considered a reprisal. It's consistent with some of the changes we made with BQ-2 in terms of what is a reasonable belief. It allows us to make it consistent throughout that section.

[The Chair, Conservative, Kelly McCauley]

All right, Mr. Fergus. Thank you.

Colleagues, if G-3 is adopted, NDP-3, NDP-4 and CPC-1 cannot be moved due to line conflicts.

Go ahead, Mr. Garon.

[Jean-Denis Garon, Bloc, Mirabel, QC]

It's a good amendment, and it captures the essence of the definition of reprisal that we had in mind. I'm a very emotional person, however, so I'm a little saddened because there are some good things in NDP‑4. I wonder whether Mr. Fergus would be open to a friendly subamendment to add to NDP‑3, on page 9 of the package of amendments, everything before paragraph (a), in addition to NDP‑4, on page 10 of the package, paragraphs (c.3) to (c.6)—

[The Chair, Conservative, Kelly McCauley]

Mr. Garon, you're not a member of the committee, so perhaps someone sitting very close to your left might be able to fulfill such a role.

[Jean-Denis Garon, Bloc, Mirabel, QC]

The reason is that I was looking at you, Mr. Chair.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

You dazzled him.

I'll explain the friendly subamendment we are proposing. It involves NDP‑3 and NDP‑4. Before paragraph (a) of the definition of reprisal proposed in G‑3, we would add the change to the definition proposed in NDP‑3, which reads as follows:

vant who made a protected disclosure, has refused to commit a wrongdoing or has cooperated

In addition, the new paragraphs (c.2) through (c.6) that NDP‑4 proposes to add to the definition of reprisal would instead be inserted after paragraph (d) of the new definition of listed measure proposed in G‑3.

In a nutshell, the NDP's proposed amendments would be incorporated into the Liberal Party's proposed amendment, providing greater clarity to the definition of reprisal and clarifying who it refers to, without overly broadening the scope of Bill C-290 or requiring a royal recommendation.

The witnesses talked a lot about reprisals, because they have experienced various forms of it. The word horror comes to mind, because no one would want to go through what they went through. Defining the word clearly would also eliminate any possibility of someone finding a loophole in the bill or the Public Servants Disclosure Protection Act that would give them the opportunity to retaliate against the person. That's why we're proposing this friendly subamendment.

[The Chair, Conservative, Kelly McCauley]

Go ahead, Mr. Fergus.

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

My fellow member is proposing two things.

The first is to incorporate the substance of NDP‑3 into G‑3. I understand very well what she is proposing and I have no problem with it.

The second has to do with NDP‑4, specifically new paragraphs (c.2), (c.3), (c.4), (c.5) and (c.6). These elements are already implied in paragraph (d) of the definition provided in the current version of the Public Servants Disclosure Protection Act. If we include these paragraphs as the NDP has worded them, we will be restricting the scope of the actions in question. I don't think that's the intent, far from it. Therefore, it's best not to go forward with this proposal.

[The Chair, Conservative, Kelly McCauley]

Go ahead, Ms. Vignola.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Mr. Fergus, I understand your point. I thought that the list proposed by the NDP was so comprehensive that it would cover absolutely every situation. I think Mr. Johns could probably elaborate on the reasons why his party proposed this amendment.

[The Chair, Conservative, Kelly McCauley]

I think I had Mr. Garon and then Mr. Johns.

Mr. Garon, did you want to pass it over to Mr. Johns, or are you going to go first?

[Jean-Denis Garon, Bloc, Mirabel, QC]

I'll be brief. The current act contains a definition of what constitutes reprisal:

(a) a disciplinary measure;

(b) the demotion of the public servant;

(c) the termination of employment of the public servant, including, in the case of a member of the Royal Canadian Mounted Police, a discharge or dismissal;

(d) any measure that adversely affects the employment or working conditions of the public servant;

(e) a threat to take any of the measures referred to in any of paragraphs (a) to (d).

It seems to us that both G‑3 and what the NDP proposes to add would improve the definition.

[The Chair, Conservative, Kelly McCauley]

We'll have Mr. Johns and then Mr. Fergus.

[Gord Johns, NDP, Courtenay—Alberni, BC]

The goal is to expand the list of actions that constitute a reprisal, including psychological injury.

We heard from experts that reprisals are more often manifested as psychological assault and that the infliction of emotional distress is more stealthy and harder to catch and litigate than traditional forms of reprisals like firing and demotion. We also heard from witnesses who experienced severe psychological distress and lifelong psychological conditions resulting from this. Certainly, these need to be considered under reprisals.

I think this gives a better definition, and it broadens it. Basically, expanding the list is what we're looking to do.

[The Chair, Conservative, Kelly McCauley]

Thanks, Mr. Johns.

Go ahead, Mr. Fergus.

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

Thank you very much, Mr. Johns. I understand that it's good to list things, but sometimes that can be perceived as imposing limits.

I have a question for the officials about paragraph (d) of the definition, which is on page 3 of the current act. The paragraph states, “any measure that adversely affects the employment or working conditions of the public servant”. That seems to open the door wide.

Ms. Laroche or Ms. Stevens, in your opinion, would listing these elements limit the scope of the act, and does the current definition already include them?

[Mireille Laroche]

Thank you very much for the question.

In comparing the two, I have to agree with Mr. Fergus: the definition found in paragraph (d) is very broad. Working conditions, for example, can include any psychological, health, or wellness element of work. Whether that narrows or broadens the scope of the act depends on how it is interpreted by the commissioner and, subsequently, the courts. I would say it would have both effects, unfortunately, but I think the current definition is indeed very broad.

Ms. Stevens, would you like to add anything?

[Mary Anne Stevens]

I would add that what could be missing from the NDP amendment is the similar type of catch-all that you have in paragraph (d) in the current act. By giving a list with no catch-all, it is more restrained than what is currently in the act.

[The Chair, Conservative, Kelly McCauley]

Thanks.

Go ahead, Ms. Vignola.

[Julie Vignola, Bloc, Beauport—Limoilou, QC]

Ladies, in the NDP amendment, there is no mention of removing paragraph (d) from the current definition in the act. As I understand it, in your view, if the committee decided to keep that paragraph and add the specific elements proposed in paragraphs (c.2) through (c.6) of NDP‑4, it would limit the scope of the bill, although all angles are covered.

That said, “any measure that adversely affects the employment or working conditions of the public servant” in no way includes mental or psychological retaliation. When we talk about measures that adversely affect someone's job, we often think of equipment and tasks, not the mental capacity necessary for the job. That capacity can be reduced because of psychological retaliation. This is why emotional distress should be added to the bill.

Also, anything family-related is not currently covered in the bill. I think many members of the committee have children or grandchildren. Goodness knows that when our child or grandchild is sick or being bullied at school, for example, our heads are not in the game. If someone is being retaliated against by their employer, who is supposed to be someone they can trust and, on top of that, their child is being bullied, it can cause emotional distress. The NDP amendments are intended to provide clarity in that regard.

That is my understanding of proposed paragraphs (c.2) to (c.6). I don't think they restrict anything. On the contrary, I think they are inclusive, which is something to keep in mind. That is my understanding of those paragraphs.

[Mireille Laroche]

May I respond, Mr. Chair?