Thank you for the invitation. I'm very pleased to be here. I found out yesterday afternoon, so I will not read a text, but I have five points I want to make that do take seven minutes.
First, to introduce myself, I hold the Canada research chair in occupational health and safety law at the University of Ottawa, which means that I've been recognized as an international expert in the field of occupational health and safety law. It has just been renewed to 2020. I have been teaching law since 1978. My other specialty is interpretation of statutes. Both of those will inform what I'm going to say to you today.
I have five points. The first is in relation to interpretation of statutes. I'm a lawyer. I don't want to get all lawyer-like in this context, but I think it's important to look at how lawyers would perceive what's going on with this.
There are principles in interpretation of statute that are recognized by the experts and by the Supreme Court. One is the fact that a change of wording implies a change of meaning. Another is that the legislator does not speak in vain; if they change, for instance, the definition of “danger”, it's for a purpose. Therefore, I have serious concerns in light of this with relation to the ways both the courts but more importantly the workplace parties, who are supposed to be henceforth the ones who are applying this legislation, will interpret the fact that it has been chosen to change the definition.
In terms of interpretation, my second issue is section 24 of the Interpretation Act, which says that the right to appoint includes the right to “terminate the appointment or remove or suspend the public officer”. My concern is that if the minister is henceforth in control of the appointments of the inspectors, it will at least be perceived as making them more fragile in terms of their independence, and the literature is very clear on the importance of independent labour inspectors as such. Certainly it could have a dampening effect on the part of the labour inspectors, who would seek to not displease the minister if they want to keep their jobs.
The second issue I want to look at is the question of the 80% supposedly unfounded rights to refuse in relation to danger. I have serious methodological problems with this, essentially because the message is that you're looking only at the decisions that were brought to the attention of the inspectorate, but if the internal responsibility system works as the minister suggests it does, then the vast majority of rights to refuse never get to the inspectorate. Therefore, all the success cases don't get counted in your statistic. You falsify the orientation by saying 80% are refused because it is only the hard cases that actually make it to the inspector. It's misleading, I find. My fear is that if you change the definition, it will send the wrong message to the workplace parties, because they're going to say, “We're going to tighten up on what we were successfully doing before, which is solving the problems before we get to the inspectorate”. I think we're sending the wrong message.
Third, there is the question of the definition of “danger” and my interpretation of the impact of the change of that definition. I have already mentioned that the changing of a provision is a signal to the courts and to the workplace parties that we're changing a meaning.
To prepare for today I listened to the November 19 hearings and I finally understood what I think the people were trying to suggest. I understand from the testimony of the government representatives that they mean the danger does not need to be serious if it is imminent, and it does not need to be imminent if it is serious. Parsing the law could lead to that interpretation, as perhaps the Supreme Court one day will say that's really what it means, but it's not at all clear to me, particularly in the context of a legislative modification where you presume we're trying to change something. When I read this, if I as an expert take that long to figure out how it could possibly be suggested that a right to refuse for somebody who's exposed to asbestos is not affected by their use of the word “imminent”, then I suggest that for normal people.... If you found what I just said hard to understand, well, workplace parties are going to find it hard to understand when they see the word “imminent” in there.
I have a specific comment on reproductive hazards, because I read that it was suggested that the provisions on pregnant workers take care of that already. It's very clear that pregnant workers are not covered if they are male and if they are trying to reproduce. The elimination of reproductive hazards in the definition systemically excludes males, who are not going to be able to reproduce if they're exposed to hazardous substances that will affect that. I think it's discriminatory. I think it could be attacked under the charter. It is one example of how this actually does change something. Certainly, beryllium exposure, asbestos exposure.... The case law in Quebec is because the word “imminent” is not there, preventing occupational disease that has a long latency. Right to refuse is covered by the legislation.
I have two more points.
One is the internal responsibility system. What we know is that it works very badly in non-unionized workplaces, and I think we need to remember that when we're changing laws like this. It works very badly when job insecurity is rife, and I suggest there are federal workplaces where that might be the case. We know that in the federal government there's $300 million a year spent on temporary agency workers, and we in research know that the internal responsibility system doesn't work in tripartite relationships. It's going to be extremely complicated for those people. The same thing goes for the subcontractors, and we know that the explosion near Parliament a few years back involved difficulties in application of the current Canada Labour Code in relation to subcontractors.
My final point is the importance of the independence of inspectors. I suspect that this is a no-brainer, but just in case, I was reading what was said, “We want to provide them with support and training,” and I think that's wonderful. We should always support and train our inspectors. I would hope they are already provided with support and training. It's unclear to me entirely how they will get more support and training if they're named by the minister. However, for me it's essential that these inspectors be secure in their jobs and feel that they are secure to make orders, including in relation to government employers. This is extremely delicate when the government is one of the employers that's being inspected.
I'll stop there.