Procedure and House Affairs Committee on May 29th, 2007

[The Chair, Conservative, Gary Goodyear]

Colleagues, let's bring the meeting to order today. We are starting this meeting in public—just so you know—but we don't have a specific agenda item today to deal with, although I will leave it to the committee.

We have a number of items that we have to deal with as a committee, and I want to remind folks that we have about four weeks left.

Colleagues, we ended the last meeting still discussing Bill C-415. If that's the direction we should take—and it makes sense, it's a piece of legislation and we might want to try to dispose of that—then I would request that we go in camera and deal with that first.

Are we going to get into a discussion on this?

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

Mr. Chairman, you know that we're interested in looking to discuss other items, is that correct?

[The Chair, Conservative, Gary Goodyear]

Yes, please. Did we hand this out? Yes.

Colleagues, you have in front of you a list of outstanding issues that we need to deal with. We did not have a steering committee to help decide what priorities these are. Perhaps I could just ask the committee if we should go in camera to deal with Bill C-415 and then go back to deal with these issues after that. I'm open for suggestions on this.

Madam Redman.

[Karen Redman, Liberal, Kitchener Centre, ON]

Mr. Chair, thank you.

Just as a point of reference, why are we going in camera for Bill C-415? Is that not a motion before the committee right now? It's a public item.

[The Chair, Conservative, Gary Goodyear]

If we're going to go with Bill C-415, we'll stay in public. Does that make sense? To discuss committee business, what we might want to do is go in camera. So I'm open right now to see if we're going to deal with Bill C-415, and we'll stay in public to deal with that, then we'll discuss what items we need to discuss after that. Does that make sense?

[Karen Redman, Liberal, Kitchener Centre, ON]

I won't make a motion, but it would seem to me that Bill C-415 was before us. I personally have no problem continuing with that, but I would be open, obviously, to the consensus of the committee.

[The Chair, Conservative, Gary Goodyear]

Okay.

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

I think there are still things to be said on Bill C-415.

[The Chair, Conservative, Gary Goodyear]

Let's hope not.

Is everybody okay with that?

Mr. Reid, please.

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

Sorry, I was like that guy in Welcome Back, Kotter. I got my hand up right away and I think I got ignored.

I don't object to going back to Bill C-415 either, but I'd like, if possible, the first item after that to be the motion that I had brought forward, not necessarily to discuss it in depth but to at least get it on the table. This is the motion relating to the retention by the Liberal research office of a number of documents, including my old personnel files, from back when I was working on the Hill. So that's just to mention that it was something the Speaker recommended be brought before this committee.

Thank you.

[The Chair, Conservative, Gary Goodyear]

As members will see with the sheet that I've handed out this morning, there were a number of issues. Mr. Reid, your motion is on there. I suggest that we will do exactly that.

I'm seeing that everybody's in agreement. We'll move to Bill C-415.

So why don't we stay in public? Is everybody okay with that? Did I see a hand go up?

Please, Monsieur Godin.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Are the items on this list in the order they were presented to the committee?

[The Chair, Conservative, Gary Goodyear]

No, this is just a summary list to help members remember that there are a number of motions that have come up over the last couple of weeks. Some of them are outstanding, in terms of being weeks old, and others are fresh and, as Mr. Reid pointed out, perhaps not yet tabled officially.

So this is just a reminder for colleagues that there are 5 or 10 or 12 items here, just a simple reminder.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Mr. Chair, as you know, the Standing Committee on Official Languages is paralyzed because the government does not wish to appoint a new chair. It is therefore important to table the NDP motion relating to committee vice chairs as soon as possible.

The Official Languages Act clearly requires that this committee exist. The Commissioner of Official Languages has to report to the Standing Committee on Official Languages. He has tabled his report and must now appear before the committee.

If the government wants to go on boycotting this committee, I think we must--

[The Chair, Conservative, Gary Goodyear]

Well, that's duly noted. Again, as I say, let's deal with Bill C-415 first. That seems to be the will of the committee. And then we will come right back to this list and we'll debate that out as soon as that's done.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

What is more important right now? Bill C-415 or the meetings this committee must hold under our Standing Orders?

[The Chair, Conservative, Gary Goodyear]

I appreciate your comments. However, I'm looking at the will of the committee. The committee is to go with a legislative bill that's before the committee and was not completely dealt with in the past.

As is historically the case on committee, we deal with legislation prior to motions--all of which are important, no doubt. But we'll go to Bill C-415 at this point and we'll stay in public for this discussion.

Mr. Lukiwski, I just saw your hand up. However, I have Mr. Preston and Mr. Reid on my list. Are those outstanding?

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

I'll defer to Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Briefly. Probably much to the disappointment of Michel Guimond, I will not be speaking in depth about my family history this time.

But I do want to speak for a couple of moments on why I support the subcommittee's decision to rule that Bill C-415 is non-votable. That's the issue we're going to deal with and ultimately vote on here, whether or not we should uphold the subcommittee's ruling on bills that are considered to be non-votable, Bill C-415 being one of them.

Very briefly, this is, in my opinion, a bill that's incredibly similar to Bill C-257 and, I think, the nine or ten other bills that were presented before it over the last number of years. Probably more important than that is the fact that the subcommittee, in whom I hope every member of this committee has a lot of confidence, dealt with this issue extensively--I think they gave it the due diligence it deserves--examined the bill very carefully and determined as a subcommittee that this bill should be considered to be non-votable.

I'm sure there have been times, Mr. Chair, when the entire committee has overruled the subcommittee decisions, but I think that in many respects, if we do that, what is the reason for having a subcommittee to begin with? We put our confidence and our trust in the subcommittee to examine matters like this. They came back with an obviously majority ruling, with representatives from all parties sitting on the subcommittee, and they determined that this Bill C-415 should be non-votable because of the fact that it is entirely similar to Bill C- 257 before it.

That ruling, of course, following the correct procedures, doesn't mean that Bill C-415 or a bill almost exactly the same can't be reintroduced in the next session. They're simply saying that since there was already a bill, Bill C-257, introduced in this session, this bill is similar to that and it can't be reintroduced in this session.

We've obviously seen, over the course of the last five or ten years or so, bills dealing with the banning of replacement workers introduced--always defeated, but they're introduced one session at a time. I think that's the proper way; that's the way the procedures and Standing Orders were written. Therefore, I think it's very appropriate on this occasion that we honour that procedure.

As for doing the opposite, this committee voting against the subcommittee ruling, not only do I think it would be a fairly dangerous precedent to set, where an entire committee overrules the subcommittee that it has itself developed, but it would start getting into a very grey area of questioning how you can determine similarities between bills. It kind of opens up a floodgate, in the sense that if one private member's bill were defeated after a vote in the House of Commons and then another member could immediately introduce a bill similar to it, it would cause us to go through the whole process again. There is a reason the Standing Orders and procedures and practices were developed over the years, and I think we need to observe that.

Therefore, I would argue very strongly in favour of upholding the ruling of the subcommittee, and that ruling, Mr. Chair, is that this bill be deemed non-votable.

That's all I have to say. Thank you, Chair.

[The Chair, Conservative, Gary Goodyear]

Mr. Reid.

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

Thank you, Mr. Chairman.

I was actually, of course, on the subcommittee, and the issue we were dealing with was the issue of similarity.

[Yvon Godin, NDP, Acadie—Bathurst, NB]

Be careful. That was in camera.

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

I don't think that's a secret. It was in the Standing Orders.

It was in camera, Mr. Chairman. We were dealing with the issue of similarity. There were a number of issues, but I think we all know that similarity was the relevant consideration here.

It seems to me that it's possible to start getting some things mixed up in our discussions. In particular, it's possible to start mixing up the ruling of the Speaker, the ruling under which he was operating, and the less tight rule, vis-à-vis similarity, that governs our decisions. And it was the cause of the subcommittee ruling as it did.

Again, I'm being respectful of the in camera rule when I simply refer to the rule itself. It talks about substantial similarity, and a review of the two bills makes it clear that there is substantial similarity.

The Speaker's ruling against finding similarity according to the tighter criteria he was working with was based on having made, at an earlier point in time, a ruling that there was a substantial difference between having something that deals only with replacement workers and having something that deals with replacement workers with reference to an exemption for workers in essential services. And that was the distinction he made. He said, having it in a previous ruling, I would then have to follow through and keep that ruling consistent as I deal with the bill and the standing order on which I'm ruling—“I” meaning him.

In our case, we were looking at this without being bound by a previous ruling that we ourselves had made. As I say, we were dealing with a wider range of similarity. I want to point out that if you take a look at the two bills and you go through them, what you'll see is that most of the paragraphs are actually identical. A couple of clauses are different, but for the most part they are absolutely identical.

You can see that effectively this really is the same bill. People who doubt that this is the case I would invite to look at the legislation in the province of Quebec on the subject of replacement workers, which is essentially on the banning of replacement workers in Quebec. You can see that there really is a substantial difference between that legislation, although it's on the same general topic, and the legislation that was introduced in the House, whether it's Bill C-415 or the...I'm sorry, I've forgotten the number of the law.

It's Bill C-257.

You can see that there's a pretty substantial difference. There are many pages--I believe it's 80 pages, if memory serves, or thereabouts--of descriptions of the kinds of services that are exempt. There is great detail going into trying to ensure that the ban on replacement workers will exist while all the services that could be regarded as being essential for the function of the economy, for public safety, and so on, are dealt with.

Had a piece of legislation like that been written, I think it would have been pretty substantially different from either Bill C-415 or Bill C-257, and it might have received a very different reception from the committee. I can't say for certain, of course, because we didn't receive such a bill. But my inclination would be to think that it would be substantially different as opposed to being substantially similar. If you take a look at the two bills, and I have them in front of me, you'll get a sense of what I'm getting at.

The clause numbers are different, Mr. Chairman, in some cases, but often it's the same thing. You really have to look not at the clause numbers of the bill but at the sections and subsections of the Canada Labour Code that are being referred to. Then you get a sense of this.

I'll just look down here and try to find examples so you get the point. Just give me a moment.

In clause 2 of Bill C-257, it says that subsection 94(2.1) of the act is replaced by the following. I'm also referring to Bill C-415, clause 3. So far the wording is identical.

In Bill C-257 it says:

(2.1) Subject to section 87.4, for the duration of a strike or lockout declared in accordance with this Part, no employer or person acting on behalf of an employer shall

(a) use the services of a person to perform the duties of an employee who is a member of the bargaining unit on strike or locked out, if that person was hired during the period commencing on the day on which notice to bargain collectively was given under paragraph 89(1)(a) and ending on the last day of the strike or lockout;

(b) use, in the establishment where the strike or lockout has been declared, the services of a person employed by another employer, or the services of a contractor, to perform the duties of an employee who is a member of the bargaining unit on strike or locked out;

If you go back and look at the same thing in Bill C-415 you'll see very similar language in clause 3:

(2.1) Subject to section 87.4, for the duration of a strike or lockout declared in accordance with this Part, no employer or person acting on behalf of an employer shall

(a) use the services of a person to perform the duties of an employee who is a member of the bargaining unit on strike or locked out, if that person was hired during the period commencing on the day on which notice to bargain collectively was given under paragraph 89(1)(a) and ending on the last day of the strike or lockout;

(b) use, in the establishment where the strike or lockout has been declared, the services of a person employed by another employer, or the services of a contractor, to perform the duties of an employee who is a member of the bargaining unit on strike or locked out;

You'll notice here that on the surface these two clauses, if you're looking at them side by side, look more different than they actually are. If you put them right beside each other so you have the same language versions, you'll notice it's just the way they were drafted that gives a superficial appearance of greater difference. Underlining occurs to a larger degree in Bill C-415, where all the words in proposed subsection 94(2.1) from “Subject” all the way down to “Part” are underlined. You can actually see that the words that will appear in the act as rewritten will be identical.

Similarly--and I'm not sure I can tell you exactly why this is--the paragraph letter (a) is underlined in one and not in the other, but it's the same thing. The words “who is a member of” are underlined in one and not the other, but they're going to be the same when rewritten. In one you're talking about changing the wording and showing the detailed changes to the words. In the other you're simply showing the section as rewritten; you're eliminating the underlining. But they are in fact exactly the same thing. They're just different styles of legislative drafting. I suppose it would be an interesting matter to find out if the same legislative counsel worked on both of these together.

The use of that continues, with “during the period commencing” underlined in one and not the other, but the words are still there. The word “day” is in line 35 of Bill C-415 but not in the corresponding line 23 in the other bill--similarly the final words of this paragraph, “under paragraph 89(1)(a) and ending on the last day of the strike or lockout” .

In legislative drafting, if you're adding a whole new paragraph, rather than underlining every line, which would make it hard to read, a line is put down the left-hand side to indicate the new material that's being put in. That was done in one bill but not the other.

In Bill C-415 this was done, but not in Bill C-257. But when you look at it, once again you see that exactly the same wording is in use. I mentioned proposed paragraph 94(2.1)(b) of the Canada Labour Code. Here you see all the same wording.

But again, superficially it looks different. You notice I was stumbling a bit at the beginning, trying to find the examples, because I myself was thrown off by the superficialities that have nothing to do with the substance of the bills but are in fact simply a question of the drafting style.

Not everything is identical. I don't want to leave the false impression that absolutely everything is identical here. If you continue, proposed paragraph 94(2.1)(b), as far as I can see, is identical. That's a paragraph I already read. But if you go to proposed paragraph 94(2.1)(c), there is at this point, I believe, a change. So there are some distinctions. I'm not trying to say that everything is identical, but the differences that appear on the surface are not as great as they might appear to be.

Looking ahead, here's another example: proposed subsection 94(2.4) is changed. It appears that in this case there is an alteration that is actually different. The two are substantially similar. They're not identical.

Proposed subsection 94(2.4) in one bill would read:

The measures referred to in subsection (2.2) shall exclusively be conservation measures and not measures to allow the continuation of the production of goods or services otherwise prohibited by subsection (2.1).

This actually is different. Excuse me for a moment. I think I have the right subsection. Yes, I do. Yes, they're quite different.

The other one reads:

The Minister may, on application, designate an investigator to ascertain whether the requirements of subsections (2.1), (2.2) and (2.3) are being met.

But even here, we find that there's a great deal of similarity. We're just continuing. You'll see that largely this is the result of a renumbering of proposed subsections in one compared with the other, which I suspect is the reason for the line down the left-hand side showing that sections have been replaced.

Proposed subsection 94(2.5) in Bill C-257 becomes proposed subsection 94(2.4) in Bill C-415, where you'll immediately see that the wording is actually identical. Once again, I myself, when trying to make the argument that these are similar, was thrown off and was indicating that they're more different than they actually are.

Here's what proposed subsection 94(2.4) of the one bill says:

The Minister may, on application, designate an investigator to ascertain whether the requirements of subsections (2.1), (2.2) and (2.3) are being met.

It changes, in the other bill:

The Minister may, on application, designate an investigator to ascertain whether the requirements of subsections (2.1), (2.2), (2.3) and (2.4) are being met.

It's the fact that (2.4) is removed from one and is included in the other that gives the impression that all the other paragraphs are actually different, when in fact just the numbering is being changed.

Then we go back. There's proposed subsection 94(2.5) in the one bill; that's in Bill C-415. Now we're back to being identical, word for word, with proposed subsection 94(2.6) in the other piece of legislation:

The investigator may visit the work places at any reasonable time and be accompanied by a person designated by the certified trade union, a person designated by the employer, and any other person whose presence the investigator considers necessary for the purposes of the investigation.

It's absolutely identical, word for word.

Proposed subsection 94(2.6) in the one is identical to proposed subsection 94(2.7) in the other. I think the rule of thumb to follow here is that for this part of the bill, Bill C-257 has one number extra, one more proposed subsection than Bill C-415. So proposed subsection 94(2.6) in Bill C-415 is proposed subsection 94(2.7) in Bill C-257.

Again, identical:

The investigator shall, on request, produce identification and a certificate of designation signed by the Minister.

It's the same thing with the next clause:

The investigator shall, immediately after completing the investigation, make a report to the Minister and send a copy of the report to the parties.

And you can see the next paragraph, where you have identical wording again, it's clause 2.8, and then the other:

The investigator has, for the purposes of the investigation, all the powers of a commissioner appointed under the Inquiries Act, except the power to impose a sentence of imprisonment.

With regard to clause 3 of Bill C-257, we see that it's essentially identical to clause 4 of Bill C-415.

The point I'm making is reasonably clear. I can continue and go through the entire bills--they're not long bills--but nonetheless I think the point is made pretty clearly, Mr. Chairman.

The other thing I wanted to draw to people's attention--as we work together and often agree with each other, particularly in the same caucus--is that I'm not as worried as Mr. Lukiwski that a dangerous precedent could be set if we overruled a previous ruling of a subcommittee, particularly when that subcommittee has met in camera. Unless we go in camera ourselves, we don't have full access to what was discussed and it seems reasonable to have to make certain assumptions. So I would differ with my colleague on this point.

But I think we would be setting a dangerous precedent—and here I think he would be in agreement with me—if we were to try to make our vote on this bill contingent on any consideration other than what the rules say. And if anybody here is voting based on the merits of replacement worker legislation, whether there should be such legislation or, if there is such legislation, whether or not it should make provision for essential services, these are questions of policy and they are utilitarian questions, the kinds of questions that as parliamentarians we are asking ourselves all the time, because our goal is to make good laws for the governance of the country.

In this committee we have to act much more as a court acts, not as utilitarians but as contienes, looking at what the rules say, what our prime directive is. And our prime directive is ensuring that the Standing Orders are followed as closely as they can be, without regard to the actual merits or demerits of specific pieces of legislation, but rather with consideration of the relevant rule and the relevant mandate we have. And that mandate is to make sure any bills that are substantially similar to other bills that have been before the House not be permitted to move forward; and of course, that if they are not falling afoul of that rule or the other rules that govern our actions, we allow them to go forward.

So I urge all members of this committee to base their votes on the facts and on our mandate to follow the rules laid out under the Standing Orders.

Thank you very much, Mr. Chairman.

[The Chair, Conservative, Gary Goodyear]

Mr. Preston, please.

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

Thank you, Chair.

I believe that in the last meeting of this committee I discussed a great deal of what we needed to talk about for this bill, so I'll try to be far briefer and succinct today and get to where we're headed.

First of all, I want to thank the subcommittee, and Mr. Reid, of course, as part of it, and Madam Picard and some others, for doing the work that we've done on this bill, and on whether it's votable or non-votable. Mr. Reid has pointed out, in his conversation just now, the similarities between these two pieces of legislation, Bill C-257 and Bill C-415. I think he's done it in as fine a way possible, comparing clause to clause. Really, as a committee, we were faced with simply trying to determine the votability based on the similarities of the two pieces of legislation.

That's what the subcommittee was faced with. That's what we looked at. It isn't about content. This bill could have been about anything, but if it had already been voted on in this House....

At that same meeting, we did rule another piece of legislation non-votable because it had already been voted on in this House. It was very clear. It came through. It was similar to another piece of legislation that had already been voted on. That has not come back to this committee and this committee is not discussing that today, because it was found to be substantially similar and had already been voted on in the House. Therefore, it met the criteria.

I guess the real piece that I would like to point out and really emphasize again is that non-votable does not make it non-debatable. Non-votable does not mean that this piece of legislation is killed. It simply means it's not voted on at the end of the day. It can still be debated in the House and brought forward. We often look forward to our time in presenting a piece of private member's legislation and getting a point forward that we really feel dearly about and getting it discussed in the House.

Non-votability is not the end of it. Non-votability is, at this level, simply one more step along the way. It can be appealed a different way. It can be brought to the House as a non-votable piece of legislation. There are still plenty of other opportunities there. So I challenge this committee to remember that and look at it from that point of view.

I'm also reminded at this point of Ms. Bell and her bill, which was ruled to be substantially similar to Bill C-257, the original piece of legislation that we're comparing Bill C-415 to. This is as much a triangle as it is two bills being ruled substantially similar. We've already been faced with two bills being substantially similar before this.

On the two bills, Bill C-257 and...I'm sorry, I cannot remember the number of Ms. Bell's bill, but her bill was on the use of replacement workers and the Canada Labour Code. I wonder how she would feel if we now changed our minds and found another bill to be votable. We went through a great deal of trouble to discuss her bill, and to make it...that may be Ms. Bell now, wanting to know why we ruled her bill non-votable.

On one hand, the subcommittee brought forward a recommendation on hers that it was non-votable, and it was accepted well. We were charged by the Speaker then to come up with some remedy for her, as to what we could do differently. She in fact was able to put in another piece of legislation. Since this was her first one, perhaps she felt pretty dearly about it too. We really did end up telling her she couldn't do it. It was non-votable because of similarities.

We move forward now to another piece of legislation that's saying exactly the same thing, substantially similar to one that's been voted on, Bill C-257, and here we are. We're going to say something different. Mr. Reid said it very clearly and succinctly, so I think I had better say it again. This isn't about the content of the bill. This isn't about changing legislation, whether we're for or against whatever the content of the bill is. This is simply us being held by our own regulations, our own rules, our own Standing Orders, in determining what is votable and what is non-votable.

There we go. That's what it's truly about.

We've had other cases already in this Parliament--for instance, the case of Mr. Benoit. His bill was ruled non-votable. He came forward and appealed it to this group. This committee upheld the rulings of the subcommittee at that time and said the subcommittee did its work well and diligently, and we were correct.

In the case of Ms. Bell, this committee said the same thing. This committee did its work well. The subcommittee did its work well. I don't understand why, in this case, we're suggesting that the subcommittee somehow has had some sort of inability to do its work. What we're really saying here is that the subcommittee has said it's followed its own procedures. It got this far, and it came to the conclusion under our own Standing Orders that this bill was non-votable, and that's where we are.

So we're here today at that point. We have to eventually come to the conclusion that we are now at the point where this committee has to back up the work of the subcommittee and suggest that either it's followed through on the job it was given or it has not.

Mr. Chair, I think I can say pretty clearly--we spoke at length the other day on this--that we're at the point now where all has been said that needs to be said on this bill. I see the bright eyes across the room when we make a statement like that. But I think we're truly at the point where this committee needs to stand behind the subcommittee, which did hard work and did what it was supposed to do, and clearly asks itself what its purpose is if indeed we're not going to support the recommendations or follow the Standing Orders or do what we're supposed to do.

Mr. Chair, I'll end with that and say, as the chair of the Subcommittee on Private Members' Business, that we work hard against a certain set of criteria. In this case, we believe we've done our job properly.

I would then move the second report of the Subcommittee on Private Members' Business, moving this item, a piece of legislation, that Bill C-415 is non-votable. I would move this report to this committee and ask for its acceptance.