Procedure and House Affairs Committee on May 15th, 2007

[The Chair, Conservative, Gary Goodyear]

Colleagues, let us begin our meeting this morning.

I wish to welcome everybody here as well as indicate that the meeting this morning will be in public. We will deal with Mr. Silva first thing, then we'll talk a little bit about business for Thursday.

I remind the members of the steering committee that at 12:30-- this is my guess--we will, hopefully, be over with this business, and the steering committee is requested to stay behind so we can discuss the next four weeks.

Colleagues, pursuant to Standing Order 92, I believe we will begin the consideration of the second report of the Subcommittee on Private Members' Business. Members around the table will have that report in front of them. Ultimately, it states:

Pursuant to Standing Order 92(1)(a), the Subcommittee on Private Members' Business agrees that the following item of Private Members' Business should be designated non-votable on the basis that it contravenes the criterion that bills and motions must not concern questions that are substantially the same as ones already voted on by the House of Commons in the current session of Parliament.

As a result and pursuant to the Standing Orders, the sponsor of the bill, the member for Davenport, Mr. Silva, has requested to appear before the committee, and that request has been granted.

I will open the floor to Mr. Silva in a few moments for any opening statement he may have, then we will proceed, colleagues, in the usual fashion, beginning with a seven-minute round of questions. If it's necessary, we'll go to a second round and a third round, as we have in the past.

I simply want to remind members that the discussion today should not be focused on the merits of the bill but, rather, to determine whether or not we can support the report of the subcommittee in that this bill is substantially the same as previous bills.

Having said that, I would be more than happy to open the floor to Mr. Silva.

Mr. Silva, the floor is yours, and any comments you might want to make, please make them to the chair.

[Mario Silva, Liberal, Davenport, ON]

Thank you, Mr. Chair.

Before I begin, has everybody received the material that I forwarded to the committee in both official languages?

[The Chair, Conservative, Gary Goodyear]

Yes, sir.

[Mario Silva, Liberal, Davenport, ON]

Thank you very much, Mr. Chair and members of the committee.

First, I'd like to begin by saying that although prima facie both bills seem to be dealing with the same topic, it is important to note, Mr. Chair, that they are materially different, both in scope and in the content of the bills. In fact, it is important, for me to outline these differences, that I quote both the comments made by the government House leader in the House of Commons and the comments made by the Speaker, so that we could determine that both the Speaker and the House leader had ruled that the amendments I put forward initially in relation to Bill C-257 went beyond the scope and, in fact, change the content of the bill.

The government House leader challenged some of the amendments on the grounds that they exceed the scope of the bill, as outlined in Marleau and Montpetit, lines 9 to 11:

An amendment is out of order procedurally, if:

it is not relevant to the main motion (i.e., it deals with a matter foreign to the main motion or exceeds the scope of the motion, or introduces a new proposition which should properly be the subject of a substantive motion with notice);

This is a quote from the government House leader in relation to my amendments to Bill C-257.

The Speaker of the House, upon examination of the amendments, ruled them to be out of order:

Bill C-257 amends three sections of the Canada Labour Code: section 87.6 dealing with the reinstatement of employees after a strike or lockout, section 94 dealing with prohibitions relating to replacement workers, and section...

[The Chair, Conservative, Gary Goodyear]

Excuse me. I apologize, Mr. Silva.

[Pauline Picard, Bloc, Drummond, QC]

A point of order, Mr. Chair. There is something that I have not understood. When the subcommittee met to study the votable nature of the bill, I was under the impression that it had been declared votable. Now we have received a ruling from the Speaker that the bill must be brought back. He considers that it is different from Bill C-257 in that it deals with essential services. He says that it is not identical, and that the reading must continue. I do not understand why the bill was declared non-votable, since we voted in favour—

[The Chair, Conservative, Gary Goodyear]

No, that's not true.

[James Robertson, Committee Researcher]

My understanding is that Mr. Van Loan raised a point of order in the House regarding the acceptability of the bill Mr. Silva introduced. The Speaker delivered his ruling indicating that, in his view, the bill did not contravene the rules he was bound to apply, and he left it to the procedure and House affairs committee to determine whether, under the standing orders for private members' business, the bill would be votable. He did not pre-empt any decision by the standing committee.

When this bill was considered by the Subcommittee on Private Members' Business, the subcommittee decided that it should not be votable as it contravened criterion number three of the criteria for non-votability that had been adopted by the committee. That report was tabled here last week. And under the Standing Orders, Mr. Silva does have the right to appear to appeal to the committee to overturn the decision of the subcommittee.

[The Chair, Conservative, Gary Goodyear]

If I could, I'll just impress upon colleagues that if we could just let Mr. Silva complete his opening statement, we can then deal with it.

I see hands going up. If there's a point of order, please say so, and I'll recognize you right now.

If we're going to continue with the points of order, I just want to make sure that Madame Picard is satisfied with that response--not satisfied, but understands. My understanding is that the Speaker uses perhaps different measures.

[Pauline Picard, Bloc, Drummond, QC]

I was under the clear impression that the subcommittee had declared the bill votable.

[The Chair, Conservative, Gary Goodyear]

Okay. Merci.

Do you have another point of order, Mr. Reid?

[Scott Reid, Conservative, Lanark—Frontenac—Lennox and Addington, ON]

It's on the same point of order, Mr. Chairman.

I just think it has to be done now. After Mr. Silva finishes his presentation, it would be worthwhile reviewing Standing Order 86(4), which is the part under which the Speaker ruled, and then, by contrast, point number three under Standing Order 91.1(2), which is what we're considering. That would allow members to have clarity as to the different rules and the different standards that are being applied on a somewhat similar topic.

[The Chair, Conservative, Gary Goodyear]

I think that's very clear. If members need copies of those standing orders, we'll get them. Clearly, what the two standing orders provide are different criteria, different measuring sticks for what we're doing. We're dealing with the subcommittee's criteria for deeming a private member's bill votable or non-votable.

However, my apologies, Mr. Silva. Could you pick up where you left off?

[Mario Silva, Liberal, Davenport, ON]

That's quite all right, Mr. Chair.

I'm here basically to appeal to the wisdom of this committee to in fact have my bill proceed in the House.

As I was mentioning to you, Mr. Chair, I had quoted the government House leader. The Speaker now has, also in relation to my amendments to Bill C-257, basically said that the amendments deal with three sections in the Canada Labour Code: section 87.6, section 94, and section 100. The section dealing with essential services was basically dealing with section 87.4, which is the provision on essential services.

Basically, the Speaker concluded that, “Therefore, on strictly procedural grounds, the Chair must conclude that the ruling of the chair of the committee was correct: these last two amendments do go beyond the scope of the bill as adopted at second reading and are therefore inadmissible.”

In other words, the Speaker declared that by “importing the new concept of essential services” and by seeking to “reach back to the parent act and import into Bill C-257, the terms of reviews of orders made by the board under subsection 87.4(7), concepts not found within the bill as adopted at second reading”, the amendment went beyond the scope of the original bill. Therefore, in order to address these issues, an entirely new bill would need to be drafted to incorporate these concepts.

As noted, Bill C-257 and Bill C-415 both address the issue of banning replacement workers, but they do so by using different means. And Bill C-415 is larger in scope than Bill C-257.

According to the ruling in 1989 by the Speaker of the House, a bill that addresses the same subject but achieves its goals by different means is sufficiently distinct to remain votable.

In a 1989 ruling, Speaker Fraser clarified that for two or more items to be substantially the same, they must have the same purpose and they have to achieve their same purpose by the same means. Thus, there could be several bills addressing the same subject, but if their approaches of the issues are different, the Chair could deem that to be sufficiently distinct.

This is from page 898 of Marleau and Montpetit, lines 23 to 27.

Bill C-415 meets the requirement of uniqueness and should remain votable. Given all the evidence, it is clear that Bill C-415's inclusion of the two essential service amendments makes it distinct from Bill C-257, by the Speaker's own ruling. The rules of the House clearly dictate that bills dealing with similar issues but addressing them using different means are votable.

The Speaker of the House, upon examination of the amendments, ruled them to be out of order, as were the amendments that I put forward. But dealing with section 87.4, which is a new section, in fact, makes this bill, in my mind, votable.

Given all these facts, I appeal to this committee to agree that Bill C-415 proceed and is in fact votable.

[The Chair, Conservative, Gary Goodyear]

Thank you very much, Mr. Silva.

We'll open our first round of questioning, if there are any questions. Do we need seven-minute rounds? Shall we start with that? Let's have seven-minute rounds, and if you don't need your time, it would be wonderful.

Mr. Owen, and then Mr. Preston.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, Chair.

Through you, thanks to Mr. Silva for being here and putting forward such a cogent brief for us to be able to crystallize exactly what we're talking about and to understand what's occurred.

Yes, there may be slightly different criteria that the Speaker would use and the subcommittee on votability would use. Although there seems to be a stunning contradiction if we say the amendments to Bill C-257 were out of order and went beyond the original scope of the bill, yet we also say Bill C-415 is non-votable because it's substantially the same. There seems to be a logical gap there for amendments being beyond the scope of the bill, and the new bill that actually seeks to put forward those amendments is not substantially different.

Perhaps Mr. Silva can comment on it. If I understand his presentation correctly, we seem to have two contradictory results. If it's within the power of this committee to correct what would be an illogical situation, I think we should discuss if it is possible to do that.

[Mario Silva, Liberal, Davenport, ON]

Yes, I agree with you. In the House of Commons, as you all know, I made the argument that they were in fact the same and there were no differences. However, the government House leader and the Speaker ruled that it was not the case.

In fact, my amendments dealt with another section that was not mentioned in the bill. Therefore, it went beyond the scope and language of the bill, it was materially different, and it could not be incorporated into this bill. The only solution one could come up with is in fact doing a new bill that would address those issues or concerns.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

That was my understanding. Thank you.

[The Chair, Conservative, Gary Goodyear]

Thank you.

Mr. Preston, and then Madam Picard.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

I'd like to start off by thanking Mr. Silva for coming to make his presentation today and for trying to shed some light on this.

I know my colleague Mr. Reid is talking about the two different sets of standing orders that are driving this.

It's my thought, and I think it's accurate, that Bill C-415 is substantially similar to Bill C-257 in the sense that they both have the same stated purpose. They're both acts to amend the Canada Labour Code for the use of replacement workers in a strike. If on the surface that doesn't make them substantially similar, and we only have to meet a criterion of substantially similar, they both attempt to accomplish the same thing, which is the use of replacement workers in the case of a strike. Full stop.

That starts me off by saying we've already met the criteria. They are substantially similar because they're trying to accomplish the same thing. But let's take it a little further.

In this case, I'll take the example of two beautiful, candy-apple red Mustangs sitting in a parking lot. I know that I love them both, and I'll even take the red colour. One has a CD player, and of course, the other has a satellite radio. They have some different options, but I think anybody looking at them would say the two cars are substantially similar, even though they have a couple of different options.

I look at these two bills in a similar way. They accomplish the same thing. They look to accomplish the same thing. They are substantially the same thing. There are a couple of different options built into one.

To address the other piece, I know Mr. Reid has the standing orders that talk about this. But talking about the Speaker ruling it out of order in the case of Bill C-257 or ruling it in order in the case of Bill C-415, it's exactly that. It's ruling it in order or out of order; it's not ruling it votable or non-votable.

Many bills that come forward in this House are ruled in order and out of order. They're still discussed during private members' business to the point of talking about which way they were voted on. It can certainly be in order in the sense that it's in order and it can be discussed in the House.

But the criterion of the subcommittee on private members' business and the work of this committee today is on whether it is votable or not. It's not whether it's in order or not. The Speaker rules on whether or not it's in order. This committee is only ruling on the fact of whether or not it's votable at the end of the day because it is substantially similar to another bill that we've already voted on in this House.

I give to you the point that it is, and I'll stop at that point.

[The Chair, Conservative, Gary Goodyear]

Okay. There was obviously no question there.

I want to offer the spot here to our Bloc members, but we don't have any.

Okay. Ms. Davies and then Madam Robillard.

[Libby Davies, NDP, Vancouver East, BC]

Thank you very much, Chairperson.

Before I make a comment and question Mr. Silva on his bill, I want to let the committee know that based on what happened at the official languages committee today, I have a motion that deals with Standing Order 106, chairpersons and vice-chairpersons at committees. I would like to request your indulgence to deal with that matter after we've dealt with this matter today. I do have a motion, in both languages, to bring forward to the committee, which I hope we can deal with.

[The Chair, Conservative, Gary Goodyear]

There are no objections to that?

[Some hon. members]

Agreed.

[Libby Davies, NDP, Vancouver East, BC]

Okay.

If I could take Mr. Preston's analogy on this bill a little further, I guess the issue would not be whether they're both red Mustangs; the issue would be whether you think the mechanic is deemed essential or whether he's providing maintenance of services. That actually would be the issue we're debating.

This issue is so full of ironies. I was on the committee that dealt with this bill originally. I supported the amendments that Mr. Silva put forward, although I never believed they were necessary. We've had this ongoing debate where the Liberals believe there's a big difference between essential services and what the Labour Code says is maintenance of services. The rulings of the Labour Relations Board have made it clear that they see them as one in the same.

We've had this debate many times. Nevertheless, he is correct. The amendments he put forward were ruled out of order by the Speaker as being beyond the scope of the bill. So now we have this new bill. I agree that the issue is not whether the bill is in order, because the Speaker has already made that decision. Whether or not we agree with it, that's his decision. The issue here is whether it should be votable. From our point of view, there really is not a difference between essential services and maintenance of services.

But we support this bill. On the basis of that technicality, that the Speaker did rule it was in effect a different bill, then I guess our position would be that it should go forward.

But really, the ironies here are quite unbelievable. I do have to say that if the Liberals had their act together and voted on this properly in the first place, we wouldn't still be dealing with this matter. But anyway, that's another story.

So we support it going forward.