Human Resources Committee on May 2nd, 2016

[The Chair, Liberal, Bryan May]

Good afternoon everybody. We have a lot to get through today, so I'm going to dispense with any preamble. I know that we have a long day today as well as Wednesday to get caught up with the order. Welcome back from your constituent weeks. Thank you to all of our panellists for this first hour.

I would like to welcome Michael Mazzuca, an executive member of the Canadian Bar Association's pension and benefits law section. From the Office of the Privacy Commissioner of Canada, we have Patricia Kosseim, senior general counsel and director general, legal services, policy and research; and Mr. Daniel Therrien, Privacy Commissioner of Canada. From the Canadian Labour Congress, I'd like welcome Hassan Yussuff, president, and Pierre Laliberté, assistant to the president.

Welcome everybody. Thank you for being here. We would like to hear first of all from Michael Mazzuca for seven minutes please.

[Michael Mazzuca, Executive Member, National Pensions and Benefits Law Section, Canadian Bar Association]

Thank you.

Mr. Chair, vice-chairs, and honourable committee members, I'm pleased to be here today on behalf of the Canadian Bar Association.

The Canadian Bar Association is a national association representing approximately 36,000 members of the legal profession. Our primary objectives include improvements in the law and the administration of justice. It is through this lens that we have prepared our written submissions and appear here today.

Our written submission was prepared jointly by the privacy and access law section of the CBA, the constitutional and human rights law section, and the pension and benefits law section, which I am from.

Our written submissions and our comments today are focused solely on the clauses of Bill C-4 that repeal the former Bill C-377. Those are clauses 12 and 13 of Bill C-4.

The CBA has previously expressed a number of concerns with respect to Bill C-377, both in our written submissions and in appearances before the House of Commons finance committee, the Senate banking, trade, and commerce committee, and the Senate legal and constitutional affairs committee. I am a past chair of the pension and benefits law section, and I was the one who appeared on behalf of the Canadian Bar Association at each of those committee hearings.

As I've said, the CBA supports the provisions of Bill C-4 that repeal Bill C-377, which inserted into the Income Tax Act extensive reporting requirements for labour organizations and labour trusts. The CBA remains of the opinion that Bill C-377 was fundamentally flawed and it triggered serious concerns from a privacy, constitutional law, and pension law perspective.

I'll leave it to my colleagues to speak more at length about this, but from a privacy point of view, the disclosure of salaries and wages of employees and contractors of independently governed organizations went well beyond what previously existed, or what has previously existed, in Canadian law, and was inconsistent with the privacy protections embodied in numerous privacy policies and constitutional jurisprudence in Canada.

To the extent that Bill C-377 would have required particularized disclosure, it obliged disclosure of personal information that is normally considered amongst the most sensitive, such as financial information and information about political activities and political beliefs. In particular, from our legal profession's perspective, the CBA was concerned, as it was throughout the process with Bill C-377, that appropriate provisions were not made for information that's usually protected by solicitor-client privilege.

Solicitor-client privilege has been called a fundamental civil right, one which the Supreme Court of Canada has said must be protected by stringent norms in order that it remains as close to absolute as possible. There were minor exemptions for solicitor-client privilege in the final version of Bill C-377, but legal advice can be provided in a number of different transactions and contacts. The overriding concern the CBA had was that the bill in its entirety did not make provision for the protection of solicitor-client privilege.

The CBA believes Bill C-377 lacked an appropriate balance between any legitimate public goals and the respect for private interests protected by law.

From a constitutional law perspective, we believe that Bill C-377 was certainly open to challenge under both paragraph 2(b), freedom of expression, and paragraph 2(d), freedom of association, of the Charter of Rights and Freedoms. We know, in fact, that it already was subject to a legal challenge, I believe in Alberta.

In particular, the requirements that a labour organization file a statement detailing its disbursements for political activities, lobbying activities, organizing activities, and collective bargaining activities, we believe, could have been found to be unconstitutional, counter to the charter's protections of freedom of expression and freedom of association.

We also believe that section 149.01 of the Income Tax Act, which was inserted by Bill C-377, interfered with the internal administration and operations of a union, which the constitutionally protected freedom of association precludes unless the government interference qualifies as a reasonable limitation upon associational rights. In that regard, it was unclear to the Canadian Bar Association exactly what the justification was for these severe infringements.

In a recent case, the Supreme Court of Canada said that the charter protects a union's ability to communicate and persuade the public of its cause, and that impairing its ability to freely express itself as it sees appropriate would be an unjustified infringement on section 2(b) protected rights.

Just as the Supreme Court of Canada has affirmed that section 2(b) of the charter protects a union's freedom of expression, it must also protect its freedom not to express.

Let me conclude on the pension and benefits concerns. Our concerns stem from the fact that Bill C-377 was broadly drafted and applied to labour organizations and labour trusts. The definition of “labour trust” was so broad that it included any fund in which a union member was a beneficiary. As we know, a great variety of types of benefits may be offered to employees and union members, and the small list of exemptions contained in Bill C-377 was not sufficiently broad. The list of exempted plans in the bill failed to encompass things such as charities, non-profit organizations, RCAs or retirement compensation arrangements, education and training initiatives, and mixed-purpose benefit plans. A plan that provided death benefits, for example, would have to disclose information about individuals who receive such benefits.

As a result of these concerns, the CBA is fully in support of the provisions of Bill C-4 repealing those provisions of Bill C-377.

Thank you.

[The Chair, Liberal, Bryan May]

Thank you very much, sir.

Now I'd like to turn the microphone over to Mr. Therrien, please, for seven minutes.

[Daniel Therrien, Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada]

Mr. Chair and committee members, thank you for inviting me to speak with you regarding Bill C-4.

In May 2015, I appeared before the Standing Senate Committee on Legal and Constitutional Affairs to comment on some of the legislative enactments of Bill C-377, which the bill before you now proposes to repeal. Namely, those provisions imposed certain public disclosure requirements upon unions under the Income Tax Act. Before that, my predecessor appeared before a House committee in 2012 and a Senate committee in 2013 on the same issue. As during my last appearance, I will keep my remarks at a fairly high level.

Firstly, as a matter of general government policy, I fully support efforts to encourage transparency and accountability, including for unions. These are fundamental organizational principles of good governance, and they underpin effective and robust democratic institutions. But transparency is not an end unto itself; it cannot be an absolute objective to the exclusion of other considerations such as privacy. Transparency efforts must be carefully balanced with the need to protect the personal information of individuals.

It was the aim of Bill C-377 to render operations of union organizations transparent and therefore more accountable. This was to be achieved by requiring publication of individual employee compensation over $100,000; details of all transactions and disbursements for which the cumulative value in respect of a particular payer or payee was greater than $5,000, including third parties; and the percentage of time spent by certain individuals on political activities and lobbying and non-union activities.

In my remarks before the Senate on the proposal, I expressed doubt that true accountability for union members required publication of such extensive personal information to the general public through the website of the Canada Revenue Agency. The vast majority of unions already have financial statements that are internally available to their members and in many cases publicly posted on their websites. However, these statements containing financial information are usually in aggregate form and seem to achieve their intended purpose without having to name specific individuals.

As I have emphasized in other venues, most recently before the House ethics committee, political activity can be and for many people is a very sensitive and personal matter. Publicly listing specific individuals along with their political and lobbying activities is, in my view, overreaching.

Likewise, publicly naming individual payers and payees, often third parties, associated with transactions involving cumulative value over $5000 seems disproportionately intrusive from a privacy perspective.

Finally, as for shining light on the compensation levels of a union's highest-paid officers, there are several ways this can be achieved in practice without having to legislatively require disclosure of specific salaries of named individuals. While several provinces require that detailed reports of a union's spending be made available upon request, these measures have stopped short of publishing the names and earnings of individuals. Similarly in France, for example, unions publish annual financial statements—that is, assets, liabilities, loans, etc.—but they contain no personal information.

In short, I am supportive of the legislation before you that will revoke these more problematic aspects.

I would be pleased to answer any questions you may have.

Thank you.

[The Chair, Liberal, Bryan May]

Thank you, Mr. Therrien.

Now we will hear from Mr. Yussuff.

[Hassan Yussuff, President, Canadian Labour Congress]

Thank you for the opportunity to appear before you today.

The Canadian Labour Congress, of course, is the single largest democratic and popular organization in this country. It speaks on national issues on behalf of 3.3 million workers. It represents more than 50 national and international unions in Canada. The Canadian Labour Congress strongly, of course, supports Bill C-4, restoring balance, fairness, and stability to federal labour relations.

From the beginning, the CLC opposed Bill C-377 and Bill C-525 as flawed, ideologically motivated legislation. These private members' bills represented a fundamental and a dangerous attack on the rights and freedoms of working people in Canada to organize unions free from outside interference. These bills were developed without consultation with the labour movement. They threatened to polarize federal labour relations and fundamentally tip the balance between employers and unions.

Historically, changes to the federal labour relations regime have been incremental, based on careful study and research, and developed through extensive consultation with unions and employers. Bills C-377 and C-525 were the complete opposite. Bill C-377 was drafted and introduced without consultation with unions. The bill lacked any credible labour relations or public policy rationale. Bill C-377's purpose was to single out, interfere with, and weaken the unions.

No public company, registered charity, or non-profit organization has to disclose confidential or extremely detailed information, only unions. None of the organizations whose members can deduct professional fees, such as bar associations, medical associations, engineers and, of course accountants, were targeted, only unions.

Seven provinces and numerous constitutional experts warned that Bill C-377 interfered with provincial jurisdiction over labour relations. Experts in constitutional law pointed out that the bill violated the rights of workers under the Charter of Rights. Conservative senators warned of the serious risk to personal privacy and to thousands of individuals unintentionally put at risk by the bill, and so on.

Unions routinely issuing financial reports to their members in nearly all jurisdictions in Canada have laws entitling members to financial statements.

Bill C-377 would have cost taxpayers millions of dollars to spy on and/or punish unions. This is purely for the benefit of union-busting employers and the anti-union crusaders.

Bill C-377 was flawed as an offensive attack on unions and the constitutional rights of working people. We commend the new government in Canada for repealing it.

Bill C-525 was also drafted without consultation and without convincing justification. FETCO, the association of large employers under federal jurisdiction, did not claim there were problems with automatic card check certification. FETCO did not identify any problems with card check certification before or even during the debate on Bill C-525. Blaine Calkins, the sponsor of Bill C-525, justified the bill by referring to union intimidation in organizing drives and the mountain of complaints that end up at the labour relations board. In fact, most cases of intimidation and unfair labour practice during the certification process across Canada involve employers. Eliminating automatic card certification and imposing mandatory voting have nothing to do—

[The Chair, Liberal, Bryan May]

Excuse me, sir, I'm wondering if you could speak a little slower. The translators are having trouble keeping up with you.

[Hassan Yussuff]

Imposing a mandatory vote had nothing to do with a more democratic system of accessing collective bargaining representation. This is clear from the fact that Bill C-525 originally required a majority of employees, not voters, to decide in favour of unionizing.

Under the original Bill C-525, workers who didn't vote would have been counted as casting a “no” ballot rejecting certification. Academic research and the experience of the United States are clear: adding a secondary, mandatory vote gives employers the opportunity to interfere with union drives and engage in unfair labour practices.

Under card check certification, workers electing to become a union member in the course of an organizing drive are already indicating their preference. If there is any doubt about their intention, labour boards have the power to order a secret ballot vote. In its 2014-15 annual report, the Canada Industrial Relations Board confirmed that the vast majority of cases that result in a representation vote confirm the applicant's level of support at the time of filling of the application. The board found that the level of support following the vote remains relatively the same, or is greater than the level demonstrated by the membership evidence filed with the application.

In the period following Bill C-525's entry into force, this was true for all matters where a representation vote was conducted, except one. This reinforced our point that Bill C-525 forced workers unnecessarily to indicate their preference in a separate, second vote that was redundant, with no purpose other than to grant employers and third parties additional opportunity to influence the outcome.

In conclusion, we commend the government for moving to restore balance, fairness, and evidence-based policy-making in the federal labour relations forum.

Thank you so much.

[The Chair, Liberal, Bryan May]

Thank you.

Thanks to all of you for being brief. That's great. It allows us to get to questions quicker.

Without further ado, Monsieur Deltell.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you, Mr. Chair.

Thank you kindly, ladies and gentlemen. Welcome to this committee of the House of Commons.

I have two or three points I'd like to raise. First—

I would like to ask a question of Mr. Mazzuca.

You talked about privacy and the fact that the previous bill could cause difficulties with privacy.

However, as you know, our salaries are public. While we are not public servants, our salaries are still public. There is no problem with that because we receive money from the people.

Furthermore, under the Rand formula, all central labour organizations receive somewhere in the neighbourhood of $500 million in contributions from Canadian taxpayers. That's akin to taxation authority.

Why do you think it is acceptable for the salary of an MP to be public information—everyone knows what it is and it's always a hot topic come election time—whereas a union boss's salary, which is disclosed to union members, is not information that is available to the people who contribute some $500 million annually to the coffers of those unions?

[Michael Mazzuca]

I can respond, first of all, to the public aspect.

It's true that the federal government and several provinces have disclosure of salary legislation, but Bill C-377 was the first instance of legislation requiring a private organization to disclose salaries. No other private industry is subject to that kind of disclosure.

With respect to the union dues and the union dues' paying members, again the Canada Labour Code and most provinces have labour legislation requiring disclosure of financial information by the union to its members. The CBA certainly supports transparency. We believe that the members are entitled to that type of transparency, but that type of legislation is already there. There was no necessity to insert another layer of more public disclosure on the public website through the Income Tax Act.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Mr. Chair, I would like to ask another question, but this time of Mr. Yussuff.

You had some very strong words talking about dangerous and offensive attacks, even if we're talking about transparency and democracy.

Mr. Chair, I'd like to quote an excerpt from a brief submitted by the Conseil du patronat du Québec. Unfortunately, the committee won't have an opportunity to hear from the organization's representatives as witnesses, but since they went to the trouble of submitting a brief, I'd like to refer to it.

In talking about the secret vote, they say the following:

Holding a secret ballot once all employees have considered the issue, were consulted, heard all the arguments and debated them may in fact result in the union receiving less support.

Mr. Chair, my question is clear. We are all democratic people. All of us here around the table have been elected under a secret ballot.

I think, Mr. Yussuff, that you and all the people around you have been elected by secret ballot, by a secret vote.

Why, in that case, would you not be in favour of a union being established by secret ballot?

That approach would significantly strengthen your moral authority.

[Hassan Yussuff]

First and foremost, workers signing a union card to join a union is an indication they want to join the union.

To add a second layer is only to allow the employer an opportunity to interfere with the decision of the workers making that decision in the first place. There is no justification for it. There's no evidence suggesting that workers who sign a union card somehow are not giving their true or authentic indication of whether they want to join a union.

We have had this system in place in the federal jurisdiction for decades. It's never been proven that somehow this will interfere in the democratic rights of workers to choose their union. If you don't want to join the union, you don't sign a union card.

The board, the CIRB, which testified prior to Bill C-525 when the bill was before the committee, indicated that there has never been any contradiction between workers signing a union card and that when there was a vote, the level of support or numbers were any different. As a matter of fact, the indications are that the level of union support went up, not down, in the first place.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Why do you not support a secret vote? You have been elected under a secret vote.

[Hassan Yussuff]

Yes, I do, because of the following.

First of all, there's a difference between a secret vote choosing you as my elected representative in the country and workers making a decision about whom they want to represent them in their collective bargaining relationship. You understand nothing of the dynamics of the power relationship between an employer and an employee in the workplace in the first place.

The power dynamics are not the same. The employer has greater influence and power over workers. That's why the majority of cases filed before the boards are about employers firing workers who have chosen to join a union. The majority of cases concern employers who have intimidated workers for being involved in an organizing drive, because of the employer's interference with the union organizing drive in the first place.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

In six provinces in Canada, you have the secret vote. Where is the problem?

[Hassan Yussuff]

The fact of the matter is that it has reduced, of course, the rights of workers to join unions in many of those places. It has been demonstrated, time and time again, that employers interfere in the free right of workers to join a union in the first place.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

How could they interfere when it's a secret ballot, a secret vote, when you have seen a clear debate between those who are supportive and those who are not?

[Hassan Yussuff]

The reality, of course, is that signing a union card gives workers the right to decide whether they want to join a union. If they do, there is no justification for adding a second layer for the workers to indicate their decision in the first place.

[The Chair, Liberal, Bryan May]

Thank you very much.

Now over to Monsieur Robillard.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Thank you, Mr. Chair.

Good afternoon to all the witnesses. Your contribution to the committee's work is deeply appreciated.

My question is for Daniel Therrien.

When Bill C-525 and Bill C-377 were passed, where did you stand on the approach that was taken?

What did you think about the Conservatives' decision to adopt those provisions by way of private members' bills? What did the Canadians you spoke with at the time think?

Would you say those citizens groups were able to have their say and be consulted in connection with those two bills?

[Daniel Therrien]

Thank you for your question.

As I recall, the comments that I, or Ms. Stoddart, made at the time in relation to the previous incarnation of the bill had to do with its substance and legislative provisions, as opposed to the consultation process beforehand or lack thereof. My predecessor, Ms. Stoddart, and myself were steadfast in that regard. Our position was that the bills, now statutes, were problematic from a privacy standpoint.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

You have been on the job since 2014. Since then, have you gotten the sense that the various concerns over Bill C-525 and Bill C-377 were taken into account?

[Daniel Therrien]

I had the opportunity to address the matter before House and Senate committees, but my suggestions were not followed. That's how I would answer that.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Mr. Therrien, I asked the Minister of Employment, Workforce Development and Labour this question last month. I asked her how the passage of Bill C-377 would hinder the privacy of unions and unionized employees. Allow me to explain.

Some groups, including the Canadian Labour Congress, the Barreau du Québec, and the Canadian Bar Association, were of the view that the disclosure requirements in Bill C-377 violated the Canadian Charter of Rights and Freedoms. They argued that the disclosure requirements hindered union activities and put the union at a disadvantage at the bargaining table, in relation to the employer, in contravention of the freedom of association guaranteed under section 2 of the charter.

Are you concerned that the reporting requirements could hinder the internal administration of powerful labour organizations or force unions to disclose information that could disadvantage them during collective bargaining?