Procedure and House Affairs Committee on June 6th, 2019

[The Chair, Liberal, Larry Bagnell]

Good morning.

Welcome to the 160th meeting of the Standing Committee on Procedure and House Affairs. This meeting is being held in public at the moment. The first order of business today is consideration of regulations respecting the non-attendance of members by reason of maternity or care for a newborn or newly adopted child.

We're pleased to be joined by Philippe Dufresne, the House law clerk and parliamentary counsel, and Robyn Daigle, director, members' HR services. Thank you both for being here.

Members will recall that our 48th report recommended that the Parliament of Canada Act be amended to provide members of Parliament with access to some form of pregnancy and parental leave. The legislation was subsequently amended to empower the House of Commons to make regulations. As you're aware, the Board of Internal Economy considered the matter last week and recommended that PROC consider a set of draft regulations that it unanimously endorsed.

I would note for the members that the draft regulations distributed in the morning have some slight differences from what we received from the board last week, and it's my understanding that the law clerk will explain the reasons for the changes.

With that I'll turn it over to you, Mr. Dufresne, for your opening remarks.

[Philippe Dufresne, Law Clerk and Parliamentary Counsel, House of Commons]

Thank you, Mr. Chair.

Mr. Chair and members of the committee, following last week's letter from the Board of Internal Economy, I am pleased to appear before you today with my colleague Robyn Daigle, director of Members' Human Resources Services, to discuss the potential regulations on non-attendance related to maternity and paternity.

You will likely be familiar with this issue because, as the chair mentioned, it comes from a recommendation the committee itself issued in one of its reports presented to the House earlier in this session.

Under the Parliament of Canada Act, a deduction of $120 is to be made to the sessional allowance of a member for each day the member does not attend a sitting of the House of Commons beyond 21 sitting days per session. Days in which a member is absent by reason of public or official business, illness or service in the armed forces are not computed as days of non-attendance and no deductions are made in such circumstances.

There is, however, no similar exemption if a member does not attend a sitting due to pregnancy or providing care for a newborn or a newly adopted child. Your committee considered this issue earlier in this session. In its 48th report entitled "Support for Members of Parliament with Young Children", this committee, after reviewing the relevant provisions respecting deductions for non-attendance, concluded and recommended as follows:

It is the Committee’s view that a member should not be penalized monetarily for his or her absence from Parliament due to pregnancy and/or parental leave. Therefore, the Committee recommends

That the minister responsible for the Parliament of Canada Act consider introducing legislation to amend section 57(3) of the Parliament of Canada Act to add that pregnancy and parental leave be reckoned as a day of attendance of the member during a parliamentary session for the purposes of tabulating deductions for non-attendance from the sessional allowance of a member.

Following that committee recommendation, Bill C-74 was introduced in Parliament and passed. It amended the Parliament of Canada Act to authorize the two Houses of Parliament to make regulations regarding the attendance of their respective members and regarding amounts to be deducted from the sessional allowance for the parliamentarian missing meetings owing to their pregnancy or any parliamentarians missing meetings to take care of their new-born or newly adopted child.

Earlier this year, the Board of Internal Economy asked the House Administration to prepare a bill for its review. While preparing the proposal, the administration took into account the fact that members are not employees. Members hold public office and are not replaced when they are absent as would be, for example, an employee on parental leave. National emergencies or other important matters can always occur and force the member to return to the House or to take care of an issue in their riding.

So the issue before you is not a matter of leave in the strict sense. It is rather about whether absences related to maternity or paternity should be considered as less justified than those related to other motives such as illness, public or official business, or service in the armed forces.

The administration examined the rules in provincial and territorial legislative assemblies in Canada. We have also reviewed Great Britain's practice. That review helped us see that the majority of legislative assemblies allow members to miss sittings, without a financial deduction, by reason of maternity or paternity, over a definite or indefinite period of time.

The members of the Board of Internal Economy unanimously endorsed the following proposal in terms of potential regulation: first, that no deduction be made to the sessional allowance of a pregnant member who does not attend a sitting during the period of four weeks before the due date; second, that there be no deduction to the sessional allowance of a member providing care for his or her newborn child during the period of 12 months from the child's date of birth; and, third, that there be no deduction to the sessional allowance of a member providing care for a newly adopted child during the period of 12 months from the date the child is placed with the member for the purpose of adoption.

This proposal is in line, in my view, with this committee's 48th report, presented in 2017, and with new section 59.1 of the Parliament of Canada Act.

I note that the proposal is not about a period where members will not attend at all to their parliamentary functions, but rather, as mentioned, members of Parliament are not replaced when absent. They are not in the same situation as employees and there will always be issues of either national or local importance that will warrant members and require members to attend either to Parliament or to their constituency. As such, the aim of the proposal is to make sure that no deduction is made to the sessional allowance of a member who misses a sitting of the House because the member is pregnant or providing care for his or her newborn or newly adopted child.

The document entitled “Draft Regulations”, which has been circulated to the members of the committee, contains the legal text that, if adopted by the House, would implement what is proposed. I note that we've made small editorial changes since it was first sent to the members by the board. They do not affect the substance of the proposal. We also removed the coming into force provision, presuming that the committee and the House would want the regulations to come into force immediately upon their adoption, but if the will is otherwise, a different date could be inserted.

I also note that the letter from the Board Of Internal Economy to this committee indicated that the board was also supportive of having no deductions made for the period of four weeks before the due date for a member whose partner is pregnant. In so doing, the board recognized the important role that the non-pregnant partner plays in the weeks leading up to the due date.

That idea is certainly worth exploring. We have analyzed the provisions of the Parliament of Canada act to determine whether, in its current form, the act would make it possible to include those circumstances in the proposed regulations.

Following that analysis, I'm of the opinion that extending the application of the four-week non-deduction period to members whose spouse is pregnant would go beyond the wording of the new section 59.1 of the Parliament of Canada Act, which sets out situations where the House of Commons can make regulations. It states that non-attendance could apply to its members who are unable to attend a sitting of the House by reason of:

(a) being pregnant; or

(b) caring for a new-born or newly-adopted child ... or for a child placed with the member for the purpose of adoption.

The English version is similarly drafted and does not include the situation of a member whose partner is pregnant, and so I note that under the existing regime a member whose partner is pregnant could still be absent prior to the due date for some or all of the 21 sitting days without any deductions.

Under the circumstances, I am not suggesting that the committee recommend extending the application of the non-deduction period prior to the child's birth to members whose spouse is pregnant. The implementation of that suggestion would require an amendment to section 59.1 of the Parliament of Canada Act.

However, this is an important issue that is worthy of consideration. The committee could decide to explore this issue in the next session to find potential options. Those options could include legislative amendments or data analysis to clarify trends and measure the repercussions of the current rules on pregnant individuals' spouses.

Last, the board raised the issue of vote pairing for members who are absent from the chamber for family reasons. The committee may also wish to consider this as a topic for a subsequent report.

This will conclude my presentation, but we will of course be happy to answer any questions you may have.

[The Chair, Liberal, Larry Bagnell]

Thank you very much. That adds some great clarity.

I have two things for the committee. One, I want to deal with just the recommendation first and come to a conclusion as to whatever we're going to do with this. Two, I'm going to do open rounds so anyone can ask questions, because there may be different interests here.

Madam Moore.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

I would like to clarify certain aspects, to ensure that we understand the situation properly.

Let's use the example of a pregnant member whose riding is very far. If ever, as of the 28th week of pregnancy, it became very complicated for her, medically speaking, to get to Parliament, she would have to provide a medical certificate justifying her absence from the House, as far as I understand. Basically, the days in the period between the 28th week and the 36th week of pregnancy would be considered sick days. As of the 36th week, they would be considered pregnancy days.

In short, before the 36th week of pregnancy, a member's non-attendance must be justified through medical reasons that prevent her from coming to Parliament. In that case, the individual must provide a medical certificate.

[Philippe Dufresne]

Yes, that's right.

In its current form, the Parliament of Canada Act already accepts absences due to illness. In any circumstances where medical or illness reasons can be established, be it related to pregnancy or not, members can miss sittings.

The idea behind the committee's recommendation is that the period leading up to the birth be included even without a medical certificate.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Great.

I want to clarify something else.

During those days of non-attendance, the member remains responsible for all the administrative aspects—so anything that cannot be delegated to employees. The member continues to fulfil their duties, such as by approving their employees' various absences and their office's spending. The whole administrative component related to the management of the member's office remains the member's responsibility, correct?

[Philippe Dufresne]

That's correct.

In fact, the member also maintains their responsibilities toward their constituents. That is why, in the context of the rules defined here, we think that the situation of members cannot really be compared with that of employees on parental leave. Even the expression “parental leave”, in my opinion, is not the best expression to be used in this case. Members are in a different situation; they are not truly on leave in every respect.

What is proposed is to specify that, in some cases, it will not be possible to attend sittings of the House. At that point, the absence should not be treated more harshly than non-attendance for other reasons.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Ultimately, a member with a critic role can be called by their party to provide advice on positions to take, for example, while a nurse on maternity leave would not be called at home to be asked whether a patient should be given a particular medication.

[Philippe Dufresne]

Exactly.

In theory, an employee on parental leave is replaced by someone else, or it is expected that the individual will not be available to do the work. In the case of a member, the situation would be different.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Concerning the 12-month period, that is left to the member's discretion. There is no obligation to take 12 months of leave. A member can make a judgment call and decide to be present for two months because an important issue for them is under consideration, and then decide to take a month to be with their child.

The parliamentary calendar is often made up of three-week blocks of sitting, after which members can return to their riding for a week. The member could elect not to return to the House during the week in the middle of that block, to avoid having to make a round trip over the weekend. In general, members make a round trip in less than 48 hours, to make the trip less difficult. So a member could choose to spend the middle week in their riding, to avoid round trips over a weekend. That would be possible to do over a 12-month period.

[Philippe Dufresne]

That's right. During the 12-month period following the birth of a child, the adoption of a child or the placement of a child for the purpose of adoption, the member's absences will not be counted. If there are no absences, it does not apply, of course. That does not mean the member cannot or must not be in the House. When they decide not to attend for those reasons, those reasons are good ones in the House's view.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

I have one last question. It's about financial penalties. Basically, that amendment shelters members from financial penalties.

Often, all the $120 deductions for every day of sitting that will be missed are added up. We tell ourselves that it may not be a very large amount, but Parliament could decide at any time to increase that amount. For example, it could decide that, from now on, there will be a $500 deduction per day of non-attendance. In that case, the estimated cost of absences for maternity reasons would no longer be the same at all.

Do you know when the $120 amount was last indexed or changed?

[Philippe Dufresne]

The $120 amount has always remained at $120. That amount has not been modified. However, the House can modify it. The act states that the House can, through regulations similar to the ones proposed here, decide to increase it. That is a possibility.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

So, to your knowledge, the $120 amount has never been increased.

[Philippe Dufresne]

No.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Okay.

[Philippe Dufresne]

Allow me to now answer your underlying question.

Indeed, the deduction may not be a very high amount, at the end of the day. Even if all the days of non-attendance over a period of time were not justified, the percentage of the session allowance received by the member would remain high. It is important to understand that this is not leave. A member's situation would be different from an employee's situation in those circumstances.

As it has been mentioned at the Board of Internal Economy, beyond the simple issue of the financial amount, there is also this willingness to recognize that the reason invoked is legitimate and that the deduction should not apply.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Thank you very much. That answers my questions.

[The Chair, Liberal, Larry Bagnell]

Thank you.

Mr. Nater.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Mr. Chair.

Thank you to our witnesses. I appreciate the clarity with which you've presented this, particularly the reasoning around the four weeks for the partner of a person who's giving birth.

I want to follow up a little bit on the thinking that went into preparing this specific proposal. I know that some provincial legislatures have a maternity and parental leave provision. Others leave it to the discretion of the speaker of the legislature. I'd be curious to know why the recommendation came for this versus leaving it to the discretion of a speaker or presiding officer.

[Philippe Dufresne]

The way the legislation is drafted, it really talks about covering those circumstances, the pregnancy situation and the caring for a child. The question became what period do you use. As you say, some legislatures will make no deductions at all, probably in line with the thinking that there are differences for members, who never cease to be members during the session and who continue to have pressures and obligations. Others have said that it's with leave of the speaker, with leave of the assembly. Others use such categories as extraordinary family or personal circumstances or situations. Some have no deductions but they have an ethics code where there's an expectation that you attend assiduously and if you do not, you need to justify that.

It was really an attempt to see, in looking at all of this, what makes sense in terms of the practice out there. The 12 months and the four weeks prior were proposed. It could have been something different, but that was something that we felt was reasonable in the circumstances.

[John Nater, Conservative, Perth—Wellington, ON]

I think you're right. I think that is reasonable. It leaves the discretion and the responsibility and accountability to members themselves. I think that makes sense. It would be interesting to hear from some of the provinces to see their reasoning, but perhaps that's a discussion for another day.

I just want to clarify something about section 59.1, because I was listening through translation. The reasoning for not including the four weeks for the member whose partner is having the baby is that it would be ultra vires of that section of the act. It wouldn't be possible to implement that provision based on the amendment to the Parliament of Canada Act that was passed through last year's budget implementation legislation.

[Philippe Dufresne]

The act states:

members who are unable to attend a sitting of that House by reason of

(a) being pregnant;

With that language, in both English and French versions, in my mind it's specific to those circumstances. PROC's recommendation was also similarly in that vein. Again, that's something that may warrant consideration as a policy matter. That would certainly be open to the committee to do.

[John Nater, Conservative, Perth—Wellington, ON]

That's something that would have to be done basically through an amendment to the Parliament of Canada Act, to permit that.

[Philippe Dufresne]

To include that as part of the reasons, it would, in my view, require such a change.