HRPD Committee Meeting

STANDING COMMITTEE ON HUMAN RESOURCES DEVELOPMENT AND THE STATUS OF PERSONS WITH DISABILITIES

COMITÉ PERMANENT DU DÉVELOPPEMENT DES RESSOURCES HUMAINES ET DE LA CONDITION DES PERSONNES HANDICAPÉES

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 23, 1998

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[English]

The Chairman (Mr. Reg Alcock (Winnipeg South, Lib.)): Order, boys and girls. I see a quorum, so let us begin.

When we reached the hour of adjournment yesterday we were on clauses 3 to 44—there had been an agreement—and we were taking questions on that group of clauses.

I suppose to facilitate the process I will ask the question, shall clauses 3 to 44 carry?

Are there any questions?

Mr. Dale Johnston (Wetaskiwin, Ref.): Mr. Chairman, I think we have some questions. Actually, these pertain to some remarks made in the House yesterday that pertain to this committee particularly. The speaker at the time was Mr. Nault, the member for Kenora—Rainy River.

The Chairman: A fine member he is.

Mr. Dale Johnston: He was talking about—debate, Mr. Chairman, let's debate—this committee in particular and about the need to get the ministers before the committee to deal with estimates. He seemed to imply that we've done absolutely nothing on the estimates this year and that somehow that was the responsibility and the fault of the official opposition.

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We have, as he so rightly pointed out, a huge budget here, about $60 billion. I am on record, as the chairman will know, in steering committee as asking for the ministers, both HRD and labour, to appear before this committee and to defend their part IIIs of the estimates. I've been told time and time again that, oh, we can't possibly get them here until after the estimates are tabled in the House.

The estimates were to be tabled on March 24, and I wanted the ministers here to defend their estimates as soon as possible after that.

Mr. Chairman, if this committee hasn't dealt with the estimates, it's certainly not because the ministers haven't been asked here to defend them. I would like an opportunity to set that record straight.

As a matter of fact, in steering committee I said because we have a lot of questions and a lot of clarification in Bill C-19, and because of the timing of it...because Bill C-19 was the first item on the Order Paper for the 36th Parliament. They introduced it in the first part of November, and it on the Order Paper, languished there, for months. Suddenly the government got in a big rush to bring in Bill C-19, smack dab in the middle of the time when we would want to deal with the estimates.

In steering committee I said if this did happen—and I anticipated this possibility—I would be willing to suspend hearings on clause-by-clause or whatever it was, at whatever stage we were with Bill C-19, to accommodate the ministers and have them defend their estimates.

Of course, I was told loud and clear by the committee, oh, we couldn't possibly reschedule and interrupt hearings and the hearing of witnesses—

The Chairman: Mr. Johnston, if I may. As you know, I am a person of enormous patience, but it strikes me that the matter you're raising is a matter that's best dealt with in steering committee.

We are on clauses 3 to 44 of Bill C-19 at the present time. If you wish to request that we call a steering committee to deal with matters of the agenda, I am prepared to consider that request, but the issue you're addressing right now are questions relative to clauses 3 to 44. We have four enormously talented and extremely expensive people from the department sitting here to answer those questions.

Mr. Dale Johnston: Mr. Chairman, I appreciate your patience, but I'd like to point out that Mr. Nault didn't address these things in steering committee, he addressed them in the House.

The Chairman: Perhaps that is where the debate should be taken, then.

Mr. Dale Johnston: I could have dashed over to the House and rebutted everything he said, but I would like to get it on the record, Mr. Chairman, that if the estimates have not been dealt with, it certainly hasn't been for lack of requests on behalf of the official opposition.

The Chairman: So noted.

On clauses 3 to 44, are there any questions?

Mr. Dale Johnston: Yes, Mr. Chairman, I believe there are.

The Chairman: Shall clauses 3 to 44 carry?

Mr. Dale Johnston: Just a moment, Mr. Chairman. No, they will not carry. My colleague had some concerns he wanted to raise in regard to the area we were discussing when we last broke. That was the area of the airline pilots and the certification of the amalgamation of the two unions, and addressing the issue of exactly who is their employer.

I would like to defer to my honourable colleague from Saskatchewan.

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Mr. Roy Bailey (Souris—Moose Mountain, Ref.): Mr. Chairman, I've had a number of opportunities to deal with this bill because of letters of inquiry that have come from my constituents. Although the bill does not belong to the area for which I'm responsible, I have gone through it very carefully. As of late, for some reason or other, a number of calls that I have gotten from both Air Canada pilots and the smaller airline pilots have come across my desk because they knew I was the critic for transportation and they thought that's where it fell.

I must admit that I have listened to many phone calls and have received many letters from both sides. I think it's incumbent upon this committee to really take a step back to re-examine the issue that is forthwith. I believe we can come to a solution and make a very definite recommendation.

First of all, when you have a carry-over, we're not talking about Air Canada. Air Canada is arguing that they don't mind bringing over their seniority as as it relates to the pay scale, and they don't mind bringing them over as as it relates to experience. But they don't want to be able to bring over the experience from the smaller aircraft and have it supersede that of those people flying the larger planes. That may not be in the best interest of the airline by any means.

We're not talking about non-recognition. What we're talking about here is somebody who has a licence to drive a half-tonne truck coming over and superseding those who have been driving tandem eighteen-wheelers down the highway. It just doesn't match. And I use that as an example, because they consider this to be a transportation issue and they consider it to be a safety issue.

As I have talked to these people and had the opportunity to ride with them on a plane not too long ago, I've seen that they are not opposed to the equal pay and equal representation. They are opposed to someone with eight years' experience in the lighter aircraft coming over and bumping someone in seniority who had three years' experience flying the larger aircraft. That's the issue.

If we don't look at that, this bill is going to provide a rift in an industry that is growing, and an industry that more and more Canadians are relying on, and that's the air travel industry. Mr. Chairman, I think it would be wise to look at this before we turn it over to the labour relations board, which has more and more powers and could in fact get the country into real problems. I think it's incumbent upon this group to deal with this issue before it becomes a national issue.

Thank you, Mr. Chairman.

The Chairman: Thank you.

Shall clauses 3 to 44 carry?

Mr. Dale Johnston: Mr. Chairman, I would like to know if Mr. McDermott has any reply to my colleague's contentions, or if he would like to respond in any way.

The Chairman: Mr. McDermott.

Mr. Michael McDermott (Senior Assistant Deputy Minister, Department of Human Resources Development): The reference is to clause 7, the proposed section 18.1 in the bill. By way of a preliminary, I should say there is a proceeding currently before the Canada Labour Relations Board involving an application for a declaration of a single employer. It involves Air Canada and the two unions to which Mr. Bailey referred. The hearings are ongoing, and there has been no decision in that.

On previous occasions when these kinds of things have been considered by the board, there have been declarations of single employer made, and it has just been just left there. The board has taken no further action whatsoever. The board has said, yes, it looks like a common employer, but we're not going to do anything about it. Who knows? We don't know what the board will decide in this particular case.

The purpose of this proposed section 18.1 is to apply it to the totality of industries under federal jurisdiction. Seniority is one of those issues that, when you get a sale of business or a merger of bargaining units or a review of bargaining units, is a very thorny issue. Although they probably won't say so publicly, the parties will often appreciate the fact that they can hand this off to a third party in certain circumstances.

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As outlined previously, this provision concentrates on negotiations. The kinds of things that Mr. Bailey mentioned would also be the subject of negotiations between the company and its unions. The emphasis in the section is on negotiations first, and only as a last resort would the board possibly be making decisions.

On the safety issue, I think it's very important. Somehow the impression can be left that a pilot from a small aircraft can bump a pilot from a large aircraft on seniority alone, and without the necessary experience, or vice versa. I would think it's just as difficult for a 747 pilot to adjust to a Dash 8 as it is the other way around. It is not seniority alone that determines who flies what aircraft. The Department of Transport has a number of regulations, of course, and the company itself does as well. There are whole training programs and so on. It's therefore important not to have the impression left with the committee that seniority alone will take somebody from an aircraft in which they're obviously qualified to fly and experienced to fly, to immediately fly an aircraft in which they don't have experience.

Mr. Roy Bailey: Can I have another minute? Thank you, Madam Chair.

But it is true, sir, that in discussing this with the pilots from both, someone has to come over from the carrier lines to Air Canada. I had a long ride with a particular individual, and I asked him when he could become a captain. He said he was formerly a pilot and so on, and that he was waiting for the opportunity. Where did he come from? He said he came from this flight on the carrier lines. I asked why he wasn't a pilot, not first mate. Again he said he was waiting for the opportunity. When there's a vacancy, he will be promoted to that position.

I guess what I am saying.... You're quite right. It's not in the safety so much as it is that the techniques differ from the smaller aircraft to the large. But here was a gentlemen who had come from eight years on the smaller aircraft, and had been three years with Air Canada. If this goes through so you have equal transportability of experience, his waiting to get a position as captain could go down the drain because somebody else who has flown nothing but the small aircraft could be moved because there's an experience rating. I don't think this is right, and I don't think either group of pilots believes this is right.

As I understand it, though, the way this bill is written, it's going to leave this nasty settlement out to the boards. The last thing we need is members of our air industry in dispute with one another under the same employer.

Thank you, Madam Chair.

Mr. Michael McDermott: It's not an issue that's necessarily new to the airline industry, Madam Chair. As you know, the airline industry has been restructured over the years. There have been a number of purchases. If you look at today's Canadian, you know it's made up of a vast number of companies that we all used to know by different names.

This issue has arisen previously about how to arrange relative seniority. Clearly, where one purchases another, it may not be reasonable to have one group go right to the bottom of the seniority list while keeping the other group at the top. That can also create tensions as well. In the past, it has often been dealt with by arbitrators looking at these issues and coming out with rulings. It's a period of adjustment.

As I said, this bill would provide the board with the residual authority or the discretionary authority to get involved in these issues. It would have an opportunity to hear all the pros and all the cons before deciding whether or not it is indeed going to use that.

Seniority tends to be dealt with in collective agreements. The company and the unions will have to deal with those kinds of issues in the light of the kinds of problems they know exist or could exist. This clause is meant to help the totality of the jurisdiction—the trucking firms, the railways and so on—in the event that they do not reach agreements on these important issues. There has to be some kind of residual authority, and that's the purpose of the clause.

The Vice-Chair (Ms. Bonnie Brown (Oakville, Lib.)): Mr. Grose.

Mr. Ivan Grose (Oshawa, Lib.): The thought that someone who is captain of a Dash 8 is going to move right across to the left-hand seat of a 747 is ridiculous, even if he has 90 years' seniority. It's just not allowed. Until he spends many weeks on ground simulators, and until he flies many months or years in the right-hand seat of the 747, he's not going to be piloting that aircraft under his sole responsibility. That's something the labour agreement has nothing to do with. It's just that he has to be qualified on that aircraft, so there's no way...he could be sitting there with ten years' seniority while the fellow flying the aircraft has two years'. That's the way it's going to be until he is trained to fly that aircraft. So there's no safety feature involved.

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The Vice-Chair (Ms. Bonnie Brown): Mr. Bailey.

Mr. Roy Bailey: Are you telling me, Ivan, that the concerns that have been raised by Air Canada pilots, the some 22 or 23 concerns that are on my desk, are not valid?

Mr. Ivan Grose: That's right. They're not.

Mr. Roy Bailey: I must disagree with you. I think I'll take their side in this story, with the detail that they have, but—

Mr. Ivan Grose: Quite frankly, I'd like to see one of those letters.

Mr. Roy Bailey: I'll give you some names too.

Mr. Ivan Grose: I don't need names. I'd like to see the contents of the letter.

Mr. Roy Bailey: Okay.

The Vice-Chair (Ms. Bonnie Brown): Mrs. Chamberlain.

Mrs. Brenda Chamberlain (Guelph—Wellington, Lib.): I think you have to understand...and with all due respect, Mr. Bailey, you said that you hadn't really studied the bill.

Mr. Roy Bailey: I have studied the bill.

Mrs. Brenda Chamberlain: I'm sorry. I misunderstood, then. I thought you said you were not familiar with it.

I think we have to understand that this new board that's being appointed will be representational. That's a key thing in this whole area. It will allow a board, which will be knowledgeable, to move in if it needs to and work with these people.

I too have been getting calls, and it's not odd to get calls when there's a lobby going on. Obviously, there is a huge lobby going on, but the reality is...one of my calls last weekend was very telling to me. The airline pilot really didn't know what to say to me. He said, “Mrs. Chamberlain, I'm prepared to fight for 50 years if I have to.” And I said, “You know what? That isn't good for anybody.”

Somewhere there has to be a mechanism to settle disputes, and that's all this government is trying to do: it's to introduce a possible—and I underline the word “possible”—mechanism to allow resolution of a dispute.

Mr. Bailey, if you can look at me and tell me, for any of your airline pilots, that you think it's a good thing they are willing to fight for the next 50 years and that's good for Canada and the airlines, I would have to say, Mr. Bailey, that I very strongly disagree.

Mr. Roy Bailey: I didn't get as strong a message as you got.

Mrs. Brenda Chamberlain: I did.

Mr. Roy Bailey: They were people who were concerned. That's all. And I just voiced it.

The Vice-Chair (Ms. Bonnie Brown): Questions or comments?

Mrs. Brenda Chamberlain: Mr. Chairman, we're ready for the question.

Mr. Reg Alcock: Oh no, we're not—

Some hon. members: Oh, oh.

Mr. Larry McCormick (Hastings—Frontenac—Lennox and Addington, Lib.): Mr. Chairman, should we call a five-minute recess?

[Editor's Note: Technical Difficulty]

Mr. Reg Alcock: There's also time for discussion here.

Mr. Bailey, do you have additional questions?

Mr. Roy Bailey: No—

Mr. Larry McCormick: Mr. Chairman, could you answer my request for a five-minute recess? Is it possible or not?

Mr. Reg Alcock: Given that we just started 20 minutes ago, I'm loath to take a five-minute recess.

Mr. Larry McCormick: Mr. Alcock, you're not in the chair's seat, so I asked—

The Chairman: Oh, I'm sorry.

Mr. Larry McCormick: Thank you.

Mr. Dale Johnston: Madam Chair?

The Vice-Chair (Ms. Bonnie Brown): Yes, Mr. Johnston.

Mr. Dale Johnston: I would like to ask Mr. McDermott a question. He talked about an application for a single employer in a particular case. I know that Mr. McDermott doesn't like to discuss cases that are before the tribunal at the moment, but could he just give me the date of when that case actually went to the board?

Mr. Michael McDermott: I'm just checking, Mr. Johnston. It was a long time ago. I don't have the precise date. It's a slow-moving case. Let's put it that way. We can get you the date.

Mr. Dale Johnston: I'm not sure, Madam Chairman, if this question's in order, but is there any particular reason for it to be such a slow-moving case? And if it is a slow-moving case, what is there in this bill that is going to speed up cases like this one?

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Mr. Michael McDermott: I'm not able to comment on the process of board cases that are under way. There are a number of measures in the bill to try to speed up the workings of the board. In this particular clause there's nothing specific except that the emphasis, again, is on negotiations. The parties themselves will be asked to negotiate solutions, and they will have the time element in their own hands at that point.

There are, however, a number of features of the bill that would enable the board to move ahead more quickly. They can, in some cases—probably not this kind of case—have single-member panels. Once they've terminated their deliberations, they're required by this statute to get their decisions out, as far as possible, within 90 days, and there are a whole number of measures of that kind.

They can now issue interim orders and interim decisions. They can engage in mediation, quite clearly, and try to get a more rapid disposition of cases.

Mr. Dale Johnston: Madam Chairman, could Mr. McDermott point out some of those sections that he feels will make a significant impact on cases of this kind in the future?

Mr. Michael McDermott: On page 10, for example, there is reference to pre-hearing. You can look at proposed section 14.2 and below at clause 3, which amends paragraph 15(a) of the act, “the establishment of rules of procedure for its pre-hearing proceedings and hearings”. So there can be a whole series of pre-hearings where some of the verbiage can be slimmed down and things moved along more rapidly.

There are other cases. I think the single-member panels one is further back. And the interim order one is proposed section 19.1 on page 13. And, by the way, the application we understand was filed. We only have the year 1996.

Mr. Dale Johnston: A single-member panel can be used, but it wouldn't very likely be used in a case as complex as where you have two unions and you have to make application for a common employer. That would be a very unlikely case for a single-member panel, wouldn't it?

Mr. Michael McDermott: That would be my view. The board itself would make up its mind. But I would suspect that it would be more likely to be a three-person panel.

Mr. Dale Johnston: So it's the board itself that actually determines whether they're going to hear this as a panel of one or two or three, or whatever.

Mr. Michael McDermott: The bill specifies on page 9 that the chairperson or vice-chairperson alone may determine a matter, and then it deals with some specifics—uncontested applications, and so on. Most commonly, it would probably be duty of fair representation cases, for example, where a union has a complaint against it from a member that it's failed to represent the member fairly and without discrimination.

In such cases it would be perhaps a little difficult for a representative on the employee's side to appear to be as neutral as they may be where the union is being questioned. And also employers don't like to get mixed up in those kinds of things, so it's more likely to be that kind of case for a single person.

There is a residual authority under the bill for the chairperson to determine other appropriate cases where undue delay might be involved, and so on. But again, I think your point about the complexity of this case would tend to suggest that you would see a full panel.

Mr. Dale Johnston: Thank you, Mr. Chairman.

The Chairman: Mr. Bailey.

Mr. Roy Bailey: I'm wondering, Mr. McDermott, if you could deal with one of the interests I have with this bill, which I've had correspondence on, the ability of someone to supply the unions with information regarding the off-site workers.

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Mr. Pat Martin (Winnipeg Centre, NDP): On a point of order, that's neither clause 3 nor 44. I thought we were arguing clauses 3 through 44 right now.

The Vice-Chair (Ms. Bonnie Brown): Any questions on this side? Mr. Nault.

Mr. Robert D. Nault (Kenora—Rainy River, Lib.): Madam Chairman, I wanted to go back to clause 7, if that's okay by everyone.

The Vice-Chair (Ms. Bonnie Brown): Clause 7, yes.

Mr. Robert Nault: What I wanted Mr. McDermott to do is, since clause 7 is brand new, explain to me the difference between this clause and the previous legislation, because there was the ability for the CLRB to look at seniority in some form. I was trying to get a better sense of just what exactly the improvements would be to this clause 7 versus the old legislation as it relates to the board's functioning.

I know it's difficult to do that, because you have to put yourself in the shoes, I suppose, of the board itself, but I think it's important for us to get a better feeling for that, considering that this is somewhat of a change that some people have some disagreement with.

Mr. Michael McDermott: I think the most important change is the fact that an application under this section has to be made by one party or the other. The board can't move in of its own volition to reshape a bargaining unit. It has to have an application before it.

In terms of the single-employer declaration, an employer will clearly have the authority to make an application as well as the union. Under the present statute it's just a union that clearly has that authority.

Currently, under sales of business, the board really deals with matters such as seniority in only one way. Where it has found that there is restructuring of the bargaining unit involved or restructuring takes place, one company buys another and the employees are then amalgamated and intermingled, as it says in the current code, the board can receive an application to reopen the collective agreement ahead of its scheduled expiry date, and right now the board will consider that application, and one of the things it will consider is whether the provisions of the collective agreement regarding seniority have been handled fairly. If the board concludes it hasn't, that's probably when it would order a reopening of the collective agreement, which is a rather drastic step. Remember, when a company is being restructured, either through sale, through single-employer declaration, or through a restructuring of bargaining units for one reason or another, it's a time of instability. To add to that instability the drastic step of reopening collective agreements may not always be the wisest thing to do. This section gives additional discretion to the board to do something less than that.

The Vice-Chair (Ms. Bonnie Brown): Mr. Paradis.

[Translation]

Mr. Denis Paradis (Brome—Missisquoi, Lib.): Clause 6 of the bill, which amends the Act by adding a proposed section 16.1, says:

16.1 The Board may decide any matter before it without holding an oral hearing.

I wonder if there isn't something missing here such as: "with the consent of both parties". The fact that the Board might decide any matter without holding an oral hearing, just on the basis of inquiry reports, even without the consent of both parties, sounds somewhat odd to my lawyer's ears. I wonder if those few words aren't actually missing. Maybe Mr. McDermott could answer me on that.

Mr. Michael McDermott: No, there is nothing missing in that sentence. Currently, under some circumstances, the Board may decide matters without holding an oral hearing. That clause would just give the Board broader discretion in that regard. Our legal counsel, Ms. Beaupré, might provide you with more details. We often have to consider all kinds of issues relating to natural justice, including within the framework of that clause, under which any submissions, such as documentary submissions, will become key elements in those matters or issues. Maybe Ms. Beaupré could provide you with further explanation.

Ms. Yvonne Beaupré (Senior counsel, Legal Services, Department of Human Resources Development): I cannot actually add much to Mr. McDermott's comments, since the answer he gave you was fairly complete. The Board may consider that written submissions are sufficient. Of course, if the Board's credibility were questioned or if it were deemed that some facts have not been clearly established, the holding of an oral hearing might then become compulsory in terms of natural justice. However, this is not the case of every matters or issues that might be referred to the Board.

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Mr. Denis Paradis: Don't you agree that both parties have a fundamental right to be heard? I would certainly understand that the Board could decide a matter without holding an oral hearing if such proceeding were agreeable to both parties. But I don't easily accept that the Board might deprive the parties of a fundamental right which pertains to the rules of natural justice, namely the right to be heard.

Ms. Yvonne Beaupré: Any individual has a right to be heard, but not necessarily through an oral hearing. That is what was ruled in that regard by the Supreme Court. Though I cannot refer you to any specific matter, I can tell you that an oral hearing is not always necessary.

Mr. Michael McDermott: I think that a similar provision exists in other administrative tribunals too.

[English]

The Chairman: Thank you.

Mr. Bailey.

Mr. Roy Bailey: Under clause 7, can the board impose anything more than time limits? What power does the board have in this dispute, anything more than time limits?

Mr. Michael McDermott: The board has the powers, if it hears one of these applications as envisaged by the clause, listed in proposed subsection 18.1(4). It also has a number of powers, such as producing documents and making people present their cases properly and in a timely fashion, but the board—

Mr. Roy Bailey: Where have I heard that before?

Mr. Michael McDermott: —can deal with those types of issues. For example, when one company buys another—let's stay clear of the airlines for a second—there might be two collective agreements. The board would determine, as this clause suggests, which is the appropriate collective agreement. Firstly, who is the bargaining agent? There may have been two unions. So for those kinds of questions it has the power to do that.

The Chairman: Mr. Johnston.

Mr. Dale Johnston: In clause 3 it says:

The Board may make regulations of general application respecting

the establishment of rules of proceedings for its hearings;

I've been distracted here the last few minutes, so if you've made reference to this, I apologize. I didn't hear it.

Does this include the factor of undue delay? I'm really concerned that there would be a case hearing before any quasi-judicial committee for nearly two years. I'm not sure what time in 1996 this particular case came, but it is now 1998. We're approaching the two-year mark, if we aren't there or past it.

To whom do these people appeal—and this is a many-barrelled question, I guess—if there is not timely application of this? Some would say justice delayed is justice denied. To whom do these people appeal? Does the committee have the power to say these are the regulations and these are the timetables in which we think it's being dealt with in a timely fashion? If they don't, who has the say that, yes, this is a timely fashion or, no, it's not, and you should have moved a lot faster?

Mr. Michael McDermott: The board has the authority to set its agenda but it has to do that in relation to the availability of the parties and their representatives. Many of these people are represented by very busy lawyers who are not always available when you might want to have them available. There are, however, in this new statute a number of things that we hope will help the board speed its proceedings along.

You referred to the establishment of rules of procedure for pre-hearing proceedings. That's going to be important. The concept of pre-hearing is where you can clear away some of the documentation and so on and get on to the substance of the matter.

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There's another section the bill has amended so they can make regulations for an expeditious procedure and matters that may be determined under that procedure. There's a series of matters here that tries to give the board the authority to push things along. But they have to do this in the context of natural justice and the ability to give parties the time to make their positions known, either orally or in documentation.

Mr. Dale Johnston: On the other part of my question, if it's not dealt with in a timely manner, who do the parties appeal to?

Mr. Michael McDermott: They have to take their case before the board in the first instance, it seems to me. I'm not familiar with legal procedures. I'm not legally trained myself, but I gather in some cases before administrative tribunals there may be some way of moving things along. As I say, in some cases the parties themselves may be just as much responsible for delays as anything the board is doing.

I don't know if Madame Beaupré has any legal terms to provide us with in this area.

Mr. Dale Johnston: Maybe I'm not making my question clear enough, Mr. McDermott. What I'm trying to get to is this. Whenever a decision is rendered, whether it's by a county counsel, a local judge or a Supreme Court judge, there's either an appeal process or there isn't. If the board renders a decision and one of the parties says “Oh, that's the worst possible outcome we could have had”, to whom do they appeal, if anybody?

Mr. Michael McDermott: I'm sorry, I misunderstood. I thought you were asking to whom do they appeal if they think things are going too slowly.

In the event of a decision being handed down, there are two methods of appeal. There's one judicial review where the case can be taken to the Federal Court for judicial review on the grounds that the board exceeded its jurisdiction or did not observe natural justice. That is used fairly frequently, I think.

Secondly, there is an internal appeal mechanism where, if a party is dissatisfied with a decision, it can ask the board to review that decision. This may be done with a sort of plenary panel, usually of the chair and two or three vice-chairs, as I understand it, or the complete plenary session of the board can hear a case. These are cases normally determining some departure from jurisprudence or some new jurisprudence.

Mr. Dale Johnston: Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Johnston.

(Clause 3 agreed to on division)

On clause 4

Mr. Dale Johnston: I think I have a few questions for the committee on that.

This clause allows the board to get involved as mediators in settling the problems. It also gives them the power to “ultimately determine the matters that remain at issue”.

It seems to me there is already an agency in the federal government set up to do the mediation work. Will mediation and conciliation be undertaken by this board too, or will this be an infringement on the board that's already there? Is this a wise move? I'm sure being an author of the bill you'll say it's a wise move, and I shouldn't leave myself wide open like that, but at the same time I'm sure you'll have some comments on that.

Mr. Michael McDermott: It's actually a very wise move, Mr. Johnston.

Mr. Dale Johnston: Oh, how surprising.

Mr. Michael McDermott: It's funny you should suggest that.

Some hon. members: Oh, oh.

Mr. Michael McDermott: In fact, I've heard it eulogized by very prominent management labour lawyers who think it will really help move the caseload of the board along. It is quite distinct from the work undertaken by the federal mediation and conciliation service in disputes that are known as interest disputes. That's where a collective agreement is being negotiated or renegotiated and you might end up with an industrial conflict involving the prospect of a work stoppage. That deals with the whole content of the collective agreement.

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This would give the board the power to mediate the cases that come before it. It's known as “alternative dispute resolution” in the legal fraternity, and it's being practised a lot by the courts to overcome caseload backlogs and so on. It has been welcomed by the parties who appeared at the minister's round tables and it was, of course, recommended by the Sims task force.

I will just note one other thing. The parties have to agree to this section being used.

Mr. Dale Johnston: It's something like final offer selection, then.

Mr. Michael McDermott: It's quite different from that, Mr. Johnston.

Mr. Dale Johnston: But it's an incremental step, and I can always hold out some hope.

Some hon. members: Oh, oh.

The Chairman: Mr. Bailey, having negotiated with your colleague, perhaps you can now ask a question.

Mr. Roy Bailey: Mr. McDermott, obviously you've stated, as author of the bill...it's a fine piece of legislation, but I want to ask you this question. Do you really believe that the new powers to which you have referred will eventually reduce the number of hearings and do you think that it'll speed up these hearings?

Mr. Michael McDermott: Yes, I believe it will. A number of steps that have been taken...including even the composition of the board, where you have a representative board, you have the prospect of regional part-time members so that you can get to the case that much sooner and you don't have to wait until somebody can fly from one side of the country to the other. There is a whole series of measures.

By the way, I'm not really the author of the bill. I've had some involvement in its drafting, but beyond that—

Mr. Roy Bailey: Okay. I have another question. You mentioned the groups that decided, that came around the table. To whom were you referring?

Mr. Michael McDermott: Much of the bill emanates from the Sims task force report. Andrew Sims, a labour lawyer and former chair of the Alberta Labour Relations Board, chaired a task force that made a series of recommendations which were generally accepted by federal employers and unions active in the federal jurisdiction as a package that was worthy of acceptance as a reasonable compromise.

Included in the report, in fact, were a number of issues that the parties themselves recommended. They came to joint agreement. And when both Mr. Smith of FETCO and Nancy Riche of the CLC were before the committee, they emphasized that indeed there were measures in the bill that they had agreed to collectively. Beyond that, the Minister of Labour of the day, Alfonso Gagliano, took the report across the country and held a series of round tables. And at the end of that, again, the parties who were active in the jurisdiction accepted the package as a reasonable compromise.

(Clause 4 agreed to on division)

(On clause 5)

Mr. Dale Johnston: Mr. Chairman, I'd like to speak briefly to clause 5.

The Chairman: Mr. Johnston.

Mr. Dale Johnston: I've just noticed, Mr. Chairman, another one of Mr. McDermott's qualities, that of modesty, which doesn't surprise me.

In clause 5 there's a reference to the pre-hearing procedures, including pre-hearing conferences that are held in private, when to do them in person, and also for telecommunications with parties to get them together...I think that is a really good idea. It would cut down on travel expenses and would probably expedite, with time away from work and all the rest of that.... Can you tell me, if you know, Mr. McDermott, of any provincial jurisdictions that have this?

This might be a bit of a stretch when you're talking about the federal government, but we design a lot of our federal labour legislation on provincial labour legislation and vice versa. Could you comment on that for me, please?

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Mr. Michael McDermott: I'm not aware of specific instances, but I'm pretty certain that some provincial boards do use teleconferencing and so on. I know it's also becoming used in our court system—not as a general rule, but more frequently. Maybe Yvonne Beaupré could correct me if I'm wrong, but I think even the Supreme Court occasionally uses teleconferencing. It's something that's creeping in.

The reason we put this in the statute is to make sure it is known and accepted that it's allowed. Sometimes people have tended to question whether getting a signature on fax or something like that is the same as actually being there and seeing the thing signed. This is to give legislative, statutory backing to that kind of action, again with the aim of speeding things up.

Mr. Dale Johnston: Could you give any examples of how this has fared in other jurisdictions, and of how you anticipate that this is going to affect federal labour negotiations?

Mr. Michael McDermott: It saves on the travel costs in terms of bringing somebody from a distant part of the country to an urban centre—which is where a number of hearings take place—or transporting the three members of a CLRB panel to some far-off location. That may be highly recommended in certain cases, but it may not be necessary in all when the teleconferencing can do the job. There are all those kinds of savings that would be able to be made.

Mr. Dale Johnston: I will defer to my colleague after this, because I see he wants to ask a question.

You did mention that there may arise some problems with this procurement of signatures, but I guess this is a surmountable problem. How do you see that you would go about doing that?

Mr. Michael McDermott: I think the use of faxing and teleconferencing, when they first came in, was always of some concern. People didn't seem to think they were the same as actually being there in person, and those kinds of things. I think that's decreasing. We are living in a technological society, and people are increasingly accepting those means of communicating with each other.

I don't see a problem arising in these cases. If there is a problem, obviously if there was an allegation that it's not my signature or not the appropriate signature, that could be dealt with. You can't commit fraud before a quasi-judicial tribunal. Forging somebody's signature would probably give rise to those kinds of complaints.

Mr. Dale Johnston: Thank you.

The Chairman: Mr. Bailey.

Mr. Roy Bailey: This is just as a matter of interest. From time to time when we have federal legislation, albeit carefully drafted, I know we've sometimes run into a bit of a snag in the other committees I've served on because, unknown to the committee, there is some provincial legislation that rather puts the federal bill somewhat out of focus. Are there provisions in this bill to deal with that very thing? I'm talking specifically about this being a labour bill. You obviously have examined the provincial legislation, their labour codes and so on. Does this conflict? Have you tested each labour code to see that this bill does not in fact conflict with any of the provincial codes?

Mr. Michael McDermott: It doesn't conflict with the provincial labour codes, because certainly in the labour jurisdiction, the jurisdictions are quite autonomous of each other. It is not exactly the same as every provincial labour statute. There are a number of major resemblances and there is a Canadian model for the most part, but they differ in certain circumstances.

Some provinces have a different approach. For example, the mediation service in British Columbia is part of the labour board. That is the only province in which that happens. In Quebec you have a labour court rather than a labour board.

(Clause 5 agreed to on division)

(On clause 6)

Mr. Dale Johnston: Mr. Chairman, I have a couple of questions on clause 6. Particularly, clause 6 deals with dealing with matters without holding an oral hearing. If that's going to take place, does that require mutual consent of all parties, or can one party request that? Exactly how will that work? That's a very brief clause, and I would like some explanation from the department.

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Mr. Michael McDermott: We did cover some of this territory in answer to Mr. Paradis' question. The board currently has the power to determine some cases without an oral hearing, on the basis of the parties' submissions. This would extend it to give the same discretion in just about every situation.

The board, however, will have to observe natural justice matters. If the parties are pressing for a hearing, the board will have to be fully justified in not holding an oral hearing. A hearing does not actually have to be an oral hearing in the presence of the parties. A number of tribunals follow this kind of path. They judge the matters on the basis of the documents—which both parties have had an opportunity to review and to rebut, if need be—brought before them.

Mr. Dale Johnston: Therefore, Mr. Chairman, if it were agreed that there would be no oral hearing, both parties would of course simply submit their written proposals. But what I'm getting at is this: in order to determine whether there is an oral hearing or not, whose determination is it? If Roy and I were the two parties and you were the adjudicator, could Roy just say he wanted an oral hearing?

Mr. Michael McDermott: No, you would have to rely on my expert judgment here.

Mr. Dale Johnston: I see, okay, but I don't know if that entirely answers the question. One of us could make an application. It would be up to you to decide, as the board.

Mr. Michael McDermott: Yes, the board would decide. The board would obviously listen to what you both have to say about the matter.

Mr. Dale Johnston: Which would constitute an oral hearing?

Mr. Michael McDermott: No, they may have both of you at the end of a telephone, for example. They may have a document coming in.

I say “would listen”, but I guess I should say they “would study” very carefully what you have to say.

Mr. Dale Johnston: Thank you. I think that answers it. I sometimes think I'm speaking a western Canadian dialect or something.

The Chairman: Shall clause 6 carry?

Mr. Dale Johnston: I'm sorry, Mr. Chairman. I have just one more question on that.

Of course, in this instance, could electronic means be utilized as well?

Mr. Michael McDermott: Absolutely.

Mr. Dale Johnston: Very good.

Thank you, Mr. Chairman.

The Chairman: Thank you, Mr. Johnston.

(Clauses 6 and 7 agreed to on division)

The Chairman: Yes, Mr. Johnston.

Mr. Dale Johnston: Mr. Chairman, I know I had some misunderstanding with you earlier in regard to the scheduling of this meeting, and it's most unfortunate that we have other things scheduled at this time. I would beg the indulgence of the committee to adjourn the meeting at this time. As a matter of fact, I move that.

The Chairman: It is moved that the meeting adjourn.

(Motion agreed to)

The Chairman: The meeting will reconvene at 11 a.m. on Tuesday. A notice will be sent to your offices.