1st Session, 42nd Parliament,
Volume 150, Issue 99

Tuesday, February 28, 2017
The Honourable George J. Furey, Speaker

Canada Labour Code

Bill to Amend—Third Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Bellemare, seconded by the Honourable Senator Harder, P.C., for the third reading of Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act.

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak on Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act.

If passed, Bill C-4 will repeal several problematic provisions found in Bill C-37 and Bill C-525. As honourable senators will remember, this chamber studied these bills thoroughly and had many challenges.

I support this bill for two reasons. On one hand, it restores balance in the federal labour regime, and on the other it restores the constitutionality of our labour laws.

I would like to begin on the first topic by quoting Hassan Yussuff, President of the Canadian Labour Congress, when he appeared before the Standing Senate Committee of Legal and Constitutional Affairs:

Careful study, consultation and deliberation have always created stability, predictability and a balance in the federal labour relations regime. Bills C-377 and C-525 threaten to undermine this achievement.

In particular, Bill C-377 singled out unions, undermining them by making their reporting conditions so demanding that it infringed on their ability to operate. The bill also ordered unions to disclose publicly any information regarding their actions pending and their members. That last requirement is especially concerning since people would fear being singled out for repercussions by this reporting, especially since it required them to disclose any political activities. If a union could not comply with these heavy reporting requirements, they would be faced with a heavy fine.

The legislation was unnecessary. When the bill was passed, section 110 of the Labour Code already required unions to provide financial statements to their members upon request and free of charge. The legislation was not about promoting transparency, since it was already present in the law.

Instead, Bill C-377 undermined unions by making their reporting conditions so demanding that it damaged unions’ ability to operate and placed a chill on potential union members who risked having their personal information revealed.

Meanwhile, Bill C-525 replaced the previous card check system used for the certification and decertification of unions with a mandatory secret vote system. The former government claimed that this change was necessary because many complaints had come up regarding union intimidation.

In fact, no federal stakeholder stated this was an issue. Further, only two cases of union intimidation could be found between 2004 and 2014. Instead, Bill C-525 created a system that only weakened unions. When Minister of Employment, Workforce Development and Labour, the Honourable Patricia Hajdu, appeared before the committee, she told us that her department had determined that the mandatory secret vote system declared that decreased union density, further changing the threshold to trigger a decertification vote from a majority to 40 per cent, threatened unions by making their decertification far easier.

Honourable senators, the restrictions that these two bills placed upon unions were unjust and unnecessary. I welcome that Bill C-4 will restore balance in the federal labour regime and remove undue restrictions on the actions of unions.

To conclude on this subject, I would like to quote Mr. Yussuff once more:

Honourable senators, the labour relations regime that Bill C-4 will restore has evolved over decades and has generally worked well in the federal jurisdiction. It has led to stability and predictability in federal labour relations. The vast majority of contracts negotiated and re-negotiated in the federal jurisdiction are settled without work stoppages. This is an important value and achievement in the regime that we have built.

Honourable senators, as I mentioned before, I also support Bill C-4 because it restores the constitutionality of our labour laws. In particular, Bill C-4 repeals sections of Bill C-317 that were blatantly unconstitutional. First, Bill C-377 intruded on provincial jurisdiction over labour relations without any form of provincial consultation or consent.

Honourable senators, we live in a federation. This speaks to the kind of country Canada is. Our country differs greatly from sea to sea to sea, with several provinces that have their own circumstances. That is why the Fathers of Confederation chose to split responsibility between the federal and provincial levels of government.

One of those areas is labour. The Constitution only provides the federal level with jurisdiction of labour that falls into two categories: Labour within the federal public sector and federally regulated private sector labour.

Under section 92(13) of the Constitution Act, 1867, all other labour relations are under the jurisdiction of the provinces. Bill C- 377, which Bill C-4 will be repealing, clearly fell under provincial jurisdiction.

According to Professor Bruce Ryder of York University, who appeared before the Standing Committee on Legal and Constitutional Affairs, less than 10 per cent of all labour organizations are under federal jurisdiction; therefore, legislating on an area that the provinces have 90 per cent jurisdiction over without consultation or consent would be unconstitutional.

When Bill C-377 was being debated in 2015, the previous government tried to avoid this by stating that the bill was amending the Income Tax Act, and claimed that it would use the federal power to legislate that area. I rejected that reasoning then, and I still reject that reasoning today. I stated then that our Constitution uses the pithand substance doctrine which states that the important characteristics or leading features of a bill determine the constitutionality of the bill. With the division of powers, this means that the courts examine the purpose of a bill when deciding which jurisdiction it will fall under. Legal associations from across Canada spoke out to say that the pith and substance of Bill C-377 was outside federal jurisdiction.

Notably, the Barreau du Québec said:

A rather more serious problem is posed by the purpose of the bill, since it is intended to provide oversight of labour organizations across Canada. Such an intention falls within the ambit of labour relations, jurisdiction over which has been conferred on the provinces through case law interpreting subsection 92(13) of the Constitution Act, 1867, since the famous decision of the Judicial Committee of the Privy Council in 1925.

Given that this is the case, I welcome the fact that Bill C-4 will repeal the unconstitutional provisions. I believe Minister Patty Hajdu summarized this issue well when she stood before the Standing Senate Committee of Legal and Constitutional Affairs and said:

. . . the constitutionality piece is important because we live in a country that believes in federalism. We live in a country that supports the rights of provinces to administer their own laws and their own jurisdiction. So it is a constitutional issue.

With that said, Bill C-377 is unconstitutional for another reason. It violates section 2 of the Canadian Charter of Rights and Freedoms. The Charter reads as follows:

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication . . .

Honourable senators, with the already existing requirement to provide financial statements to union members, there is no justification for the expanded reporting requirements under Bill C-377. In fact, there is no justification at all for the requirement to make information about political speech of unions and their members to be made publicly available on a government website.

Requiring unions to provide this information about their members is problematic for two reasons. First, publicly identifying the actions of individuals to the public could put a worker at risk as they may face repercussions for their actions. The Privacy Commissioner also stated that this requirement to release such sensitive information also violates the privacy rights of union members.

Second, the Charter reads as follows:

2. Everyone has the following fundamental freedoms:

(d) freedom of association.

To quote the Canadian Bar Association in a letter they sent to the Standing Senate Committee of Legal and Constitutional Affairs, Bill C-377 infringes on unions’ freedom of association since it “undermines trade unions by making their reporting conditions so arduous, it would infringe on their ability to operate.”

In other words, the unreasonable levels of disclosure would make the day-to-day operations for a union much more difficult, especially since the operations of larger unions include many transactions with larger amounts of money.

Given that Bill C-377 has so many problematic elements, I welcome the revocation of these provisions found in Bill C-4. Bill C-4 recognizes the previous legislation had serious concerns from the perspective of our constitutional law and seeks to restore our labour law’s constitutionality.

Honourable senators, as I mentioned before, I rise to support Bill C-4 today for two reasons. This bill restores balance in the federal labour regime and it represents a return to the important Canadian values that define us as a country: respect for federalism, the Constitution and the rights of all Canadians.

As a lawyer, I welcome this renewed focus on these central principles. Rather than obstructing Canadians as they seek to express their freedoms of expression and association, it is our job and responsibility as senators to enable them.

Honourable senators, I urge you all to join me in supporting Bill C-4.