That a Message be sent to the Senate to acquaint Their Honours that this House disagrees with the amendments made by the Senate to Bill C-20, An Act to amend the Competition Act and to make consequential and related amendments to other Acts, because this House is of the opinion that the intent and policy of the words in question is in the public interest and reflects the opinion of the great majority of Canadians, and this House proposes, in lieu of the amendments made by the Senate, that the amendments be amended to read as follows:
- Page 14, Clause 19: Delete lines 31 to 46 and substitute the following therefor:
66.1 (1) Any person who has reasonable grounds to believe that a person has committed or intends to commit an offence under the Act, may notify the Commissioner of the particulars of the matter and may request that his or her identity be kept confidential with respect to the notification.
(2) The Commissioner shall keep confidential the identity of a person who has notified the Commissioner under subsection (1) and to whom an assurance of confidentiality has been provided by any person who performs duties or functions in the administration or enforcement of this Act.
- Page 15, Clause 19: Delete lines 1 to 42 and substitute the following therefor:
66.2 (1) No employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, by reason that
(a) the employee, acting in good faith and on the basis of reasonable belief, has disclosed to the Commissioner that the employer or any other person has committed or intends to commit an offence under this Act;
(b) the employee, acting in good faith and on the basis of reasonable belief, has refused or stated an intention or refused to do anything that is an offence under this Act;
(c) the employee, acting in good faith and on the basis of reasonable belief, has done or stated an intention of doing anything that is required to be done in order that an offence not be committed under this Act; or
(d) the employer believes that the employee will do anything referred to in paragraph (a) or (c) or will refuse to do anything referred to in paragraph (b).
(2) Nothing in this section impairs any right of an employee either at law or under an employment contract or collective agreement.
(3) In this section, “employee” includes an independent contractor and “employer” has the corresponding meaning.
Mr. Speaker, I would like to speak this morning on Bill C-20, an act to amend the Competition Act. As you know, we passed third reading of this bill in the House on September 23, 1998.
The aim of this bill is to improve and consolidate the Competition Act. Some of the key amendments were intended to equip the competition bureau to combat the degrading crime of misleading telemarketing.
The bill also included provisions for whistle blowing intended to protect employees providing the competition bureau with information on activities of their employer limiting competition.
Those whistleblowing provisions were removed from the bill by the Senate as a result of arguments made by Progressive Conservative members of the Senate who focused on some concerns raised by the Canadian Bar Association.
Today this House has the opportunity to reconsider the whistleblowing provisions and an opportunity to do something positive for Canadian consumers and legitimate businesses.
I would point out that protection for whistleblowers has been the subject of a number of legislative proposals over the past several years and has been introduced in private members' bills.
The director of investigations and research at the competition bureau acted on this continued interest in whistleblowing by asking Mr. Justice Dubin to study the matter and identify the provisions that would be relevant should legislation on whistle blowing have to be introduced.
This study and its appendix on the provisions on whistleblowing were released on November 18, 1997 and posted on the Web site of the Competition Office for the public to consult.
On the initiative of the hon. member for Ottawa Centre, the whistleblowing provisions were introduced into Bill C-20 on May 26, 1998 when it was under consideration by the industry committee.
The hon. member proposed these provisions to encourage individuals who have knowledge of price-fixing arrangements to act in the public interest and to report them.
As the hon. member indicated then, the amendments resulted from a great deal of consultation with many people in the community and throughout the country.
The Canadian Bar Association raised some concerns about the whistleblowing provisions with the Senate Standing Committee on Banking, Trade and Commerce, one of which was that there had not been sufficient consultation.
We have made use of this time for additional consultation with the bar and other groups that have expressed interest in this provision.
The Public Interest Advocacy Centre, an organization comprising over 800 private members and corporations representing over 1.5 million Canadians, provided strong support for the provisions on whistleblowing.
The Canadian Direct Marketing Association also considered the provisions very important. The Canadian Bar Association as well considered there was enough protection for whistleblowers in Canadian legislation.
However, the government believes it is important to enact these additional protections as an express encouragement by parliament to people to report criminal activity limiting competition.
As for the substantive objections of the bar, the principal concern is that there could be criminal liability for requesting an employee to do something that is not actually illegal at the time of the request.
The Competition Act sets out certain criminal offences, but also deals with so-called reviewable matters in which conduct such as an abuse of a dominant position only becomes illegal after it is prohibited by the Competition Tribunal.
To meet this concern I have proposed an amendment to the whistleblowing provisions which will limit their application to conduct that is a criminal offence under the act and will not refer to conduct that is merely contrary to the act.
The CBA also argued that the potential for criminal sanctions could lead to inefficiencies in businesses where an employer might hesitate to discipline unproductive staff, even though legitimate reasons exist for doing so. However, the burden always remains with the crown to prove all elements of the offence beyond a reasonable doubt. If legitimate reasons exist for disciplining or firing an employee, then those reasons will no doubt raise the reasonable doubt that would preclude a criminal conviction.
The conclusion is that employees acting in good faith when they report competition limiting behaviour have our protection against vengeful employers. The provisions on whistleblowing, by balancing the rights of the employees and the employer, do not place an undue burden of proof on the employer.
What I have proposed in response to some of the concerns about the possibility of excessively heavy sanctions, is to withdraw the sanctions set out in the first provision.
An employer will now be liable to the same sanctions as the Criminal Code provides for the infraction of a federal statute.
I believe that it is important to send the right signal to Canadians that we need to work together to combat crime.
I am very disappointed that this issue held up Bill C-20 in the other place last December. I believe the modifications proposed to the whistleblowing provisions do represent improvements to the bill and do address the principal concerns of the Canadian Bar Association and of the Senate.
Now it is time for us to act quickly again. We need to provide appropriate protection for whistleblowers to enable the Competition Bureau to obtain the information needed to properly investigate criminal activity. We need to bring Bill C-20 into force to provide effective measures against deceptive telemarketers.
With every day that passes, there are new victims of scams. Every day that passage of Bill C-20 is delayed, the confidence of Canadians is put at greater risk. This is the moment to consider consumers, businesses and the organizations responsible for implementing the legislation across Canada, who have advocated expeditious passage of Bill C-20.
It is time to show all of these consumers across Canada that the House is listening to them. I urge that the bill receive expeditious passage.