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]

Tuesday, April 28, 1998

• 1107

[English]

The Chairman (Mr. Reg Alcock (Winnipeg South, Lib.)): Okay, let's get it going. We have a quorum here.

Let me deal with a couple of matters of business, very quickly, off the top.

The first will require a motion, and as you know, no motions go forward without pre-clearance through the steering committee in written form, unless there's unanimous consent. So this would only go forward if there's unanimous consent. Let me tell you what it is.

As you know, this committee administers a thing called the Centennial Flame Award, which is a research fund that is made available to people in the disabled community to undertake certain kinds of research. It is the moneys that are collected in the Centennial Flame pool. Each year we circulate a request for submissions, and this year—and this is not uncommon, I'm told—with the deadline we have set, we don't have a sufficient number of submissions to proceed. So what we are requesting is simply an extension of the deadline to allow us to canvass the various disability groups to see if there's an interest in someone coming forward.

The current deadline is April 30. Apparently it's not uncommon for us to do this. So the motion would be to extend the current deadline until June 30.

The first question is, is there unanimous consent to proceed with a motion of that sort? One has to nod one's head. Good. Thank you.

Now, will someone move that motion?

Mr. Larry McCormick (Hastings—Frontenac—Lennox and Addington, Lib.): I move it.

Mr. Dale Johnston (Wetaskiwin, Ref.): Can we discuss that?

The Chairman: Yes, Mr. Johnston.

Mr. Dale Johnston: Mr. Chairman, my understanding is that people have not made application for this.

The Chairman: Correct.

Mr. Dale Johnston: Is it true you have zero applications?

The Chairman: Is it zero?

The Clerk of the Committee: It is zero at this point. It's not April 30 yet.

Mr. Dale Johnston: No, but it might as well be.

Have these people been notified prior to this date that this fund is available to them?

The Clerk: Through the normal means that have been used in all the past years, through all the different organizations to which they normally are sent.

Mr. Dale Johnston: I know this is hypothetical, but what if nobody comes forward by the June 30 deadline? Then do we carry that forward to another year?

• 1110

The Clerk: We could do that.

The Chairman: We'd have to consider it at that point.

Mr. Dale Johnston: But there won't be anybody here. So I guess what I'm asking is, should that be part of the motion, Mr. Chairman, that if nobody actually applies for it by the June 30 deadline, the fund will be carried over for another year?

The Chairman: Bill, has that ever been done before?

Mr. Bill Young (Committee Researcher): It's been carried over from one year to the next when an election has been called, and then they start again in the following September.

The Chairman: So what Mr. Johnston is suggesting—

Mr. Bill Young: It's never been cancelled fully for one year; it's just been carried through the election period and brought forward when the committee's been reconstituted in the new parliament.

The Chairman: Well, Mr. Johnston, it would be possible for you to move some amendment, if you so chose, and we could see where that went.

Mr. Gouk.

Mr. Jim Gouk (West Kootenay—Okanagan, Ref.): Reg, given that, as has been stated, this thing has been advertised in the normal manner, could we maybe have just a quick overview of what that normal manner is? It's all well and good to extend a deadline, but maybe we need to examine the method by which we're contacting them so that it would be more effective. How exactly are they contacted now?

The Chairman: Danielle, do you want to speak to that?

The Clerk: Well, at the moment it's being sent to the different organizations that represent disabled communities.

One thing we would do at this point, on top of what we've normally done, is extend it to all the universities and send it to them, hoping we might draw attention, because most of our public would probably come from university students. They have to write an essay to be able to win that award. So we would extend it then, by something like over 1,000 more, via other places where maybe we could attract some interest. In the past it has not been done, but maybe this year.

Mr. Jim Gouk: Is there an individual package that's gone out to MPs to make them aware of the program so they can initiate?

The Chairman: Bill just informed me of something. I don't know the answer to the first part of that question, about whether something went out in the routine manner, but apparently in the past they have prepared an inclusion for people's householders that has been circulated to all members.

Mr. Rob Anders (Calgary West, Ref.): How many groups have we sent this out to, roughly?

The Clerk: I can't put a number exactly on it; it might even be close to 100.

Mr. Rob Anders: Okay, but it's somewhere under 100, though?

The Clerk: Oh, yes.

Mr. Rob Anders: So by extending it to the institutions, it would almost take it elevenfold to over 1,000; is that right?

The Clerk: Yes. As well, as Mr. Gouk is proposing, perhaps we would also send it to all members through electronic mail, and then members might have constituents or people they know of who they might want to refer it to.

Mr. Jim Gouk: Yes, certainly in light of the presumed extension to June, so that they're aware of that.

Mr. Rob Anders: How many applications or submissions have we received in any given year in the past?

The Clerk: About 12 or 15.

Mr. Eric Janse (Procedural Clerk): It dropped over the years. The first year that the Centennial Flame Award existed there were hundreds of applicants, the next year fewer, and as Danielle said, last year we only had 12.

Mr. Rob Anders: Okay.

Mr. Jim Gouk: It would suggest we're doing something wrong. I don't mean in that sense, but if it's dropping off, we're losing our audience somehow.

The Chairman: When it was established there was a great deal of public attention on the fact that it was established. We don't spend money on advertising, other than this very limited circulation, so there is a concomitant drop in attention paid to it.

Mr. Jim Gouk: It sounds almost as though some agencies out there may be dropping the ball.

The Chairman: It may well be.

Dale.

Mr. Dale Johnston: Mr. Chairman, I'm prepared to move an amendment to the motion that if no applications are received for the Centennial Flame Award by the deadline, June 30, administration be authorized to carry the fund forward for a year. I'd like to speak to that motion.

Mr. Chairman, I'm not suggesting there's a very strong possibility that nobody will apply for it—I'm sure someone will—but by amending the motion in this way, it gives the administration a direction to go in the very slight chance that no applications are made for this fund.

• 1115

The Chairman: Are we ready for the question on motion to amend?

(Motion agreed to)

Mr. Dale Johnston: Just as a clarification, did Reform just win a vote?

The Chairman: Reform just won a vote. Get your press releases ready.

On the main motion.

(Motion agreed to—See Minutes of Proceedings)

The Chairman: The second item is just for the information of members. We discussed this just prior to the last meeting. There has been a request from a number of Italian legislators, who are going to be in town next week. They are members from the Italian social service committee of their Parliament, and they would like to meet with us.

We had originally suggested that they sit in on our meeting next Tuesday morning, but they pointed out something that I had of course overlooked—that is, they all speak Italian, so it might be of very limited interest. However, they mentioned that if members were willing and able to be here one-half hour before the start of the meeting, they would meet with us and then go off and do something Italian, and we would get down to the business of the day. I think we're doing estimates that day, assuming other things happen.

Ms. Bonnie Brown (Oakville, Lib.): Are they bringing translators for that half-hour meeting?

The Chairman: They are bringing translators.

Mr. McCormick.

Mr. Larry McCormick: Mr. Chair, just a comment from this side of the table. Since Italian is the third official language of our caucus, I see no reason why we wouldn't make an effort to be there.

The Chairman: Mr. Nault.

Mr. Robert D. Nault (Kenora—Rainy River, Lib.): The only comment I'd make, Mr. Chairman, is that half an hour is very little time for a delegation of this importance, and if we can't find enough time to take it seriously, we shouldn't do it at all.

I think we should give them at least a couple of hours, and if it lasts an hour, good. They have come a long way and they want to hear what our views are. I can't find a short-winded Reformer over there who's going to speak less than 10 minutes on any clause. I can imagine what they'll do when they get a good solid Italian caucus in front of them, and how long that might take.

So I'd like to see it go on for more than just half an hour. I think we would embarrass ourselves by making it so short.

The Chairman: Mr. Nault, I actually agree with your intervention. The request, however, comes from the Italians.

Mr. Robert Nault: Only a half an hour? That's all they want?

The Chairman: They have another meeting.

I think Mr. Nault makes a good point. Let's speak to the person organizing it and see what we have in terms of times available.

Mr. Robert Nault: Mr. Chairman, in terms of past experience, we had a Swedish delegation last term and an hour was too short. By the time you translate things.... If people are accustomed to translation of another language—I do it on a regular basis in aboriginal country—it takes a long time. You have to double the time. So if you want a half hour of conversation you need an hour, because they translate everything.

The Chairman: Let us take that under advisement and get back to you on that.

Mrs. Chamberlain.

Mrs. Brenda Chamberlain (Guelph—Wellington, Lib.): Mr. Chairman, perhaps it would be a good idea to ask one or two of our Italian members to join us on that day. It would be nice if they could address them in Italian, I think.

The Chairman: I also expect that they will be involved in a number of things with this delegation.

Mr. Robert Nault: Bonnie is an honorary member.

Mr. Rob Anders: What day is that again?

The Chairman: Tuesday.

The other thing jamming us up is that's the day we have both ministers coming in, although that may change now.

Mr. Rob Anders: That's special.

The Chairman: Anyway, that was just for information. I will get back to you. So we'll now move on to other business.

Mr. Johnston.

• 1120

Mr. Dale Johnston: Mr. Chairman, staying with that business of the Italian delegation and the fact that we are hearing the ministers that day on the estimates, I agree with Mr. Nault that we should allow a little time to exchange some dialogue. Half an hour is very little time, particularly when you have to translate everything said by either side. I would be in favour of allowing more time, provided it doesn't cut into the time we have to question the ministers on the estimates.

The Chairman: As I said, we'll get back to you.

Moving right along to the business before us, Bill C-19, shall the bill pass?

Mr. Jim Gouk: Nice try.

The Chairman: It was worth a pass.

Mr. Jim Gouk: If you passed the bill at that point, given that you've only passed seven clauses, that would be the only portion of the bill that passed and the rest would be revoked.

The Chairman: No, we would have passed the entire bill. “Shall the bill pass?” seems to encompass the bill.

Mr. Jim Gouk: Yes, the bill as approved.

The Chairman: Having made that clarification, are you now offering to proceed with passage of the bill?

Mr. Jim Gouk: No, because I think your clarification is incorrect. I think we should only be voting on passing the bill based on what we've accepted thus far.

The Chairman: Jim—

Mr. Jim Gouk: So if you want to record a motion to accept the bill based on seven clauses—

The Chairman: —if you want to be House leader, I think you should read the rules.

(On clause 8)

The Chairman: Shall clause 8 carry?

Mr. Dale Johnston: No.

The Chairman: Well, somebody do something.

Mr. Dale Johnston: Indeed, Mr. Chairman—

The Chairman: You'd like the floor, Mr. Johnston?

Mr. Dale Johnston: That's what the little red light means, I think.

The Chairman: I think you should signal or wave something.

Mr. Dale Johnston: Very good.

Clause 8 talks about the power of the board. As one really gets into dissecting this bill, we discover just how powerful the board actually is. This portion deals with the making of interim quarters that the board deems appropriate.

I'd like to ask the officials if this provision is going to have the effect of expediting the whole process, and if so, how?

Mr. Michael McDermott (Senior Assistant Deputy Minister, Department of Human Resources Development): Mr. Mr. Johnston, it could help in expediting the process. It enables the board to deal in a logical fashion with certain items.

If you look at the previous clause, clause 7, you'll see in proposed subsection 18.1(4) a series of steps that the board can take. This provision in clause 8, proposed section 19.1, would enable the board to take those steps in the sequence it determines to be logical.

For example, it could determine which trade union shall be the bargaining agent to the employees in the new bargaining unit before amending the certification order. Those kinds of things could take place. This would be logical. It would be a way of getting on with the business and sorting out what can be sorted out first, then leaving what has to be dealt with at greater length for a subsequent time.

The provision will also help.... For example, in the code right now there's what is known as a “freeze”. At certain points, terms and conditions cannot be changed. For example, where a notice to bargain is being given, the terms and conditions cannot be changed. If they are, it would enable the board to issue an interim order restoring the status quo. That's the purpose of this. Some provincial statutes have a clear provision of this nature. It was one of those provisions that was recommended by the task force and accepted by the parties as helping the work of the board.

Mr. Dale Johnston: Following along in that vein, Mr. Chairman, it gives the board the power to make interim orders, which means temporary. Is there any time limit? What does the board deem temporary? If this temporary provision lasts longer than one of the parties thinks it should, can they make representation to the board to do something else? What exactly does “interim” mean, and is there any time limit on it?

• 1125

Mr. Michael McDermott: There's no time limit on interim. It could be a temporary order or an order that subsequently will be sustained when the full file is completed, so there are a number of things that it could be.

There is no time limit, but as long as the case is before the board, representations can be made to the board in terms of how long these things should be in place and whether they should be made permanent.

The Chairman: Mr. Gouk.

Mr. Jim Gouk: Interim and temporary mean entirely different things to me. Temporary means for a short and limited duration, while interim means that it's a precursor to something possibly more permanent.

If we approve something that gives this interim power to the board, how is that different from saying we're giving the power to the board to make whatever changes we or they want at any time? We could almost take out the word interim and say the board may prescribe any measures they choose and make them temporary or permanent at their will. Where is the difference between doing that and doing what's in clause 8?

Mr. Michael McDermott: Interim doesn't have to mean temporary, although it can. An interim order could be one that is made for a period while the rest of the case is being heard. It may be overridden by the final decision, or it may be sustained and be part of the final decision, so it could be one or the other. It's simply to enable things to be handled in a logical way. It is an additional power that the board can have to make the process go a little more smoothly.

Mr. Jim Gouk: I understand that this has been used provincially. Is that correct?

Mr. Michael McDermott: That's my understanding.

Mr. Jim Gouk: Can you tell us how it's been used in provincial codes as an example of how this would be temporary rather than interim and leading to something else?

Mr. Michael McDermott: For example, I gave cases of where there is a statutory freeze on changing terms and conditions, which most labour codes have.... Once a notice to bargain has been given, that's a period when the terms and conditions of employment cannot be changed.

If there is some allegation that they have been changed, and the prima facie appearance is that there has been a change, the board may be able to order a return to the status quo pending a full examination of the whole complaint. That's the sort of thing that could be used.

• 1130

Mr. Jim Gouk: So some provinces use this and some don't. Could you give us some information as to which provinces use it and why the others don't, if this is in fact a valid procedure?

Mr. Michael McDermott: I don't have the specific provinces here, but we can find those. My understanding is that where there is no clear statutory power, some provinces may still use it, but it's always questionable. There are a number of things in this bill that are clarifying and codifying practice so that people know what the practice is. This is just one of them, and it's helpful in that sense.

Mr. Jim Gouk: Mr. Chairman, if we're about to adopt something at the federal level that is already being considered at various provincial levels, and that some provinces for whatever reason have decided to not use, I think it would be appropriate—Mr. McDermott said he can provide a response, but not at this time—that we set aside clause 8 until such information can be brought to this committee.

Mr. Rob Anders: Mr. Chairman, I think that makes perfect sense. If we're talking about provinces that have this and others that do not, and looking at the pros and cons and everything, it makes sense to find out why some of them did what they've done, and which provinces have chosen what.

The Chairman: Is there unanimous consent to set aside clause 8?

There is no consent.

Mr. Dale Johnston: Mr. Chairman, it seems to me that if the board is willing to make an interim decision—and I hesitate to say this, because I certainly hope it's not the case—then the board is sort of a make-work project. Let's make an interim order here, and then for what reason? Are we going to come back to this some other time and make a formal evaluation of it? Why don't they make a formal evaluation of it at the time?

Am I reading it right that they will have to come back to this, will have to revisit this decision at some point and do a formal evaluation with hearings and the whole thing?

Mr. Michael McDermott: The example I gave is a situation where they remedy and restore the status quo while they determine the complaint. That's a relatively logical thing to do; the status quo is restored until such time as the legality of the action is determined. It's a logical way of doing things and it may prevent some instability in the meantime. It is an extension of an existing limited power that the board has.

The task force noted that the board currently has a limited power to make interim decisions, and it talked about how issues can often move in stages, where a board attempts to maximize the opportunity for the parties to negotiate solutions. You'll note in the bill that there are several provisions that strengthen the board's ability to encourage negotiated settlements.

We dealt with proposed section 15, where the board will be clearly authorized, with the agreement of the parties, to use alternative dispute resolution methods. This is another piece of the puzzle. It enables them to encourage negotiations and make the orders necessary while allowing the parties to get on with trying to negotiate a settlement and avoid the ultimate adjudication of a file.

• 1135

Mr. Dale Johnston: You mentioned alternate dispute settlement mechanisms. Were you quoting from “Seeking a Balance”, which is the Sims report?

Mr. Michael McDermott: We are looking at page 10 of the bill. The general power to assist the parties is in clause 4, proposed section 15.1. The thrust there is to enable the board to engage in mediation efforts and seek alternative negotiated resolutions to matters before them rather than going to adjudication. We discussed that. The courts are doing that time and time again these days to help get rid of backlogs.

Mr. Dale Johnston: Okay. So in your opinion, this will expedite the hearing process. This is going to, in your words, take care of the backlog of cases.

Is it going to have an effect then on the amount of temporary board members who are going to need to be appointed?

Mr. Michael McDermott: It's going to contribute to that; it's not going to do it by itself. It could be used in that way to help expedite matters before the board and to possibly avoid adjudications. With the presence of an interim decision on a matter, the parties will then go away and negotiate their own solution. They'll inform the board that they've done so, and the case will be over at that point.

The Chairman: Are there any questions?

(Clause 8 agreed to on division)

(On clause 9)

Mr. Dale Johnston: Mr. Chairman, I think we have some comments there in that regard.

Clause 9 deals with the standing of the board. I would like to ask Mr. McDermott if he could provide us with some examples of the type of judicial hearings that the board would likely be called upon to provide information on regarding their decisions.

This whole section deals with the board appearing before a judicial review, correct?

Mr. Michael McDermott: Well, the decisions of the Canada Labour Relations Board are reviewable on the grounds of natural justice and excessive jurisdiction by the Federal Court of Appeal, and alternately, by the Supreme Court in some cases.

The question arises, is the board empowered to appear before the court to explain its procedures—concerning its own decision, that is—and give its users the standard of the review to be used?

What we're doing here is codifying decisions of the courts as to the standing of such tribunals before them. There had been some confusion before. There was a period in which the Canada Labour Relations Board appeared, in the view of the courts, too frequently, and perhaps with a little too much force, to defend its decisions.

What the tribunal does is to go and say, “These are our procedures, and these are the procedures we followed”. The court then determines the matter. It doesn't argue the case beyond that, and it shouldn't argue the case beyond that. That's for the parties to do.

So this really clarifies what the standing is before the courts. They're there to explain what our practices and our procedures are. But the other matters of the case are left in the hands of the parties to put before the court.

Mr. Jim Gouk: In doing this, are we trying to prevent a particular type of problem on the board? Is there some problem that we basically are projecting and anticipating and this is sort of being done in order to prevent this? What exactly are we trying to prevent?

• 1140

Mr. Michael McDermott: We're codifying court jurisprudence so that it's out there for people to see. It's a message to the board that you have standing to appear, but when you do appear, there is a limited role you can play.

From my recollection, I think in the past there was a feeling, and there were some remarks, if I'm not mistaken—Madame Beaupré may be able to jog my memory on this—that the courts were being quite critical some years back of some appearances on behalf of the CLRB before the courts as going beyond what we're clearly clarifying in this provision.

Mr. Jim Gouk: Given that we're changing the procedure, then, to get around this concern about them being critical, is this not going to then take on the appearance that the board is actually trying to justify or defend itself before the court, as opposed to establishing some better procedure to ensure the board's input?

Mr. Michael McDermott: I would think it's doing the reverse. It's telling the board what it can legitimately appear before the court for and that it shouldn't go beyond that line. I think that's what it's doing.

Mr. Jim Gouk: And you think that this is the best procedure by which we could do this, and that there is not something that would seem more seamless so that we don't get into this point of almost the board arguing...? It would not argue against the court, because until such time as the court renders its decision, it doesn't have a position as such, but it almost makes it appear as though it's arguing against the court to defend a particular position. This suggests that it's wrong and it's trying to defend it, as opposed to having something more specific, such as a procedure by which the board sets out its powers, position, and justification for that position through some other means.

Mr. Michael McDermott: I think the response has to take into account the whole role of a specialized tribunal such as the Canada Labour Relations Board.

Courts defer to specialized tribunals in the areas of their speciality, and those tribunals develop their own procedures and so on. This is what the board would be doing. It would be making clear what its procedures are and what it believes are the standards of review that should be applied to it.

For example, you can review natural justice and you can review jurisdiction, but you can't review the facts of the case, because generally speaking, courts do defer to the specialized tribunals on these matters. That's basically what it's doing. It's putting out there what's already in jurisprudence that people would have to hunt for in court reports. It's putting it into a rather succinct statutory phrase such that people will know—lawyers certainly will know—what is meant by this and what the board can do when it appears before another court.

Mr. Jim Gouk: But they're still going into court to essentially argue their position by saying you must accept this because of this. But that's their position, as opposed to what you're suggesting, which is that they're in essence writing some form of the law as it relates to the LRB. Consequently, that's all it should be. It would say that here is what our position is, which according to statue is law, and here is our justification for doing that. This is as opposed to simply have standing in court to input and argue various points in the court itself.

No lawyer goes into court and says that robbing a bank is against the law, because we have on our books a specific law that makes it illegal to rob a bank. So could not the board simply provide specific information, just the same as statutes and law, and say that this is law for the purpose of this case? Wouldn't that be a more non-confrontational way to do this?

Mr. Michael McDermott: Well, this gives the board standing to explain its procedures, as I've said. What can be reviewed in a decision of the CLRB by the Federal Court is natural justice and whether the board exceeded its jurisdiction. If that's in question, the board will be in a position to explain its view of its exercise of natural justice and that it was within its jurisdiction.

The court will decide, but that's the type of thing that could be argued or presented in a submission before the court. It would be relevant. The court would probably find that relevant, at least, to its deliberations, but it wouldn't determine the case. The court would determine the case as to whether natural justice had not been observed or as to whether jurisdiction had been exceeded.

• 1145

Mr. Jim Gouk: Given that the board is already in court, in any case, they can bring forward any arguments they wish, and if the judge or the court has the power to overturn what they're putting in, then we're not giving them any power at all. We're simply saying they have the right to be there and make their presentation, which they have anyway without this clause.

Mr. Michael McDermott: They have the right to be there, but their role, once they're there, is limited, and that's what this clause does. It simply puts it up front as to what it is. As I said before, it's what is currently in the jurisprudence of the courts, which would take some time to search.

In a number of cases here we're trying to be helpful to put into the statute what is current jurisprudence so that people don't have to rifle their way through the court proceedings or engage expensive legal advice when there's something that could be put in quite simple language.

The Chairman: Mr. Anders.

Mr. Rob Anders: Mr. McDermott, you mentioned previously that you thought Ms. Beaupré might be able to jog your memory in terms of circumstances where the board was accused of exceeding its jurisdiction in matters appearing before the court. I think it is fairly pertinent to the discussion here.

Ms. Beaupré, do you recall instances where the board was accused of exceeding jurisdiction in court, and if so, what they had to deal with?

Ms. Yvonne Beaupré (Senior Counsel, Legal Services, Department of Human Resources Development): I'm sorry, can you repeat the question? I'm not sure I understood the distinction you're trying to make.

Mr. Rob Anders: Basically my understanding is that Mr. McDermott is arguing that clause 9 would be giving the board standing before the courts in questions where at times in the past it may have been alleged that the board in some capacity was exceeding its jurisdiction in some way by the courts. Can you recall instances?

Obviously, looking to change the law, as we are with clause 9, I wonder what type of instances or what type of examples we have where the courts have previously thought the board was exceeding some form of jurisdiction.

Ms. Yvonne Beaupré: I'm not sure I'm answering exactly your question. Mr. McDermott mentioned that the court had criticized the board for trying to make representations in cases where the board should not have made representations to the court. I can give you one case of that, and that's Greyhound Bus.

Mr. Rob Anders: Do you remember what the specifics of that were? How did that work out?

We're looking to change the law to give the board more power so that it's not just in a sense asked to represent itself before the courts but it's something exceeding that and to get involved in debates over its own jurisdiction and whether or not it can present itself and how it does so before the courts. So in this case of Greyhound, it would be important to know a little more about what happened in that respect.

Ms. Yvonne Beaupré: Greyhound was a case involving constitutional jurisdiction as opposed to jurisdiction of the board. The board sought to make representations to the court on the issue of constitutional jurisdiction, and the court basically said you have no right to make representations on constitutional jurisdiction, the issue being, is the bus line subject to provincial jurisdiction or federal jurisdiction in terms of its operations and labour law?

Mr. Rob Anders: I see. So if I understand that correctly, then, the board was making representation on a question of division of powers between the federal and provincial governments and was ruled by the court to be, in a sense, out of order with that or exceeding its jurisdiction. Is that right?

Ms. Yvonne Beaupré: I don't know whether one would speak of exceeding jurisdiction. Quite frankly, I don't remember whether the board had found that it was subject to federal or provincial, but it was—

Mr. Rob Anders: I'm using a phrase that Mr. McDermott has used repeatedly in his presentation today, “exceeding jurisdiction”. I am wondering whether or not that was indeed what the court was finding in the Greyhound case.

Ms. Yvonne Beaupré: In Greyhound, in a way you can say it was exceeding its jurisdiction, because the court ultimately found that it was subject to provincial jurisdiction. So obviously the board would not have had jurisdiction to hear the matter for reasons of constitutionality.

Mr. Rob Anders: In respect of that case, then I guess what we'd be looking to give the board power to do is to in a sense tell the court, which usually is the arbiter of determining whether or not something is a federal or provincial jurisdiction, certainly in matters of the Constitution and the Supreme Court and what not.... In this case here, by putting in clause 9 it would give the board the ability, in a sense, to either decide that or certainly make representation on its behalf and make the decision for itself rather than to make this a question that's strictly before the courts.

• 1150

Ms. Yvonne Beaupré: I suggest the jurisdiction referred to in the proposed amendment is not constitutional jurisdiction but jurisdiction of the board in a much narrower sense—whether the board has the power to hear a particular matter, or whether the power it purports to exercise is one that belongs to it. It's not for reasons of constitutionality.

Mr. Rob Anders: My general understanding of things would be that these questions of whether something is provincial or federal power would be something the courts would decide and have decided in a number of cases in the Supreme Court.

Ms. Yvonne Beaupré: Yes.

Mr. Rob Anders: That's the reason we have that body. So by having clause 9 we would be looking to give the Canada Labour Board more authority of its own to determine whether or not things that come before it are provincial or federal matters. Is that right?

Ms. Yvonne Beaupré: No, that is not the purpose to the clause. The board, as you have indicated, already has that power. It doesn't need to be specified in the legislation. What we are doing here is dealing with the ability of the board to make representations on applications for judicial review from its decisions, and only in very limited circumstances.

If I may, I'll give an example that does not deal with jurisdiction and that is not an example of the Canada Labour Relations Board but of the Ontario Labour Relations Board. The issue was whether when discussions by members of a board, by a partial panel, if you will—let's say a three-member panel—that were considered to be very important were discussed by the whole board in a closed-door session, it in this way breached the rules of natural justice.

The Ontario board was able to make representations to the court as to its manner of proceeding in these discussions of the board as a whole, to explain, for example, if a vote was taken, and what was the effect of the consideration on the particular members of the panel hearing the case.

As it turned out, no vote was taken at these plenary sessions. The members who heard the case were totally free to reach their own decision and therefore it was considered not to be a procedure that was contrary to natural justice. But it allowed the board to explain its procedure to the court.

Mr. Rob Anders: My understanding of the way it would exist now without these changes proposed for clause 9 to give the board more standing is that the board has every ability to make a presentation before the courts with respect to its standing on these matters. This is the whole thing we're talking about here, that they do have ability to make presentation if called upon by the courts to give a presentation on this. I don't see why the way it was previously worded would pose any problems in that regard and why they need to have a more official standing before the courts in matters like this.

Mr. Michael McDermott: Mr. Anders, there was no previous wording. I think the Sims task force looked at this issue and in a very succinct part of its report indicated that the board is an expert tribunal and it has an ongoing responsibility for the administration of the statute. The Federal Court had taken a somewhat restrictive view of the board's right to appear.

The Supreme Court, on the other hand, and many provincial superior courts, have recognized that the boards should be able to appear. But Sims then went on to detail the kinds of issues they can appear and speak to. They were to explain the record before the court and the process that took place in the case under review; explain their role, internal functioning, policies and procedures and the rationale behind such matters; and address questions concerning their jurisdiction and special expertise.

• 1155

One thing Sims said was that they had to avoid the appearance of joining in the fray between two litigants, and that is what this clause does. It explains that the board has standing to appear, but it cannot join in the fray. It has standing to explain its procedures, its policies and its jurisdiction, and as such is helpful to the court.

As well, I think what it does is to set down the terms and conditions on which this tribunal can appear before a court. It confirms it does have standing but it limits what it can talk about. That's the best way I can put it.

Mr. Rob Anders: Mr. Sims may have laid out some circumstances, but looking at the way things are worded in clause 9, I don't seem to get a sense of whether those limitations meet with what Mr. Sims was saying, or whether in fact they're very limiting at all.

The sense I have is that it really gives the board just more standing, if you will, before the courts. I don't know if it effectively limits it to “certain circumstances”, as Mr. Sims may have laid out.

Mr. Michael McDermott: In our view, it does, and in the view of the Justice drafters of the bill, it does. It refers to:

making submissions regarding the standard of review to be used with respect to the decisions of the Board and the Board's jurisdiction, policies and procedures.

It really is a way of capturing what I read from the Sims report, and that has been put in there by experienced Justice drafters, who were taking the recommendation that was made here and putting it into legislative language.

Mr. Rob Anders: You said there was no previous wording to this effect. The comment I'll make with regard to this is that sometimes if you have the ability to make presentations, and it's not laid out in terms of what the powers of the board are.... I'm aware that in many cases, giving a government arm or body more powers and adding more clauses in bills and what not doesn't always help the situation. Sometimes it complicates it more than anything else.

My concern is that many of these things should be left to the courts to determine in terms of whether or not they want a presentation from the board, rather than to the board itself. They're there to serve the courts rather than to be a self-serving entity in determining its own fit in the process, as it were.

Mr. Michael McDermott: Do you wish me to comment on that?

Mr. Rob Anders: I'd like you to, yes.

Mr. Michael McDermott: In a sense, the Canada Labour Board is a court, a quasi-judicial tribunal, and it has its own field of expertise and its own jurisdiction. So it does have a role to explain that to a court at another level, which may not be equipped with the same expertise. It's something that is I think quite common in the overall system of the administration of justice.

I don't know if you have any further comments on that, Yvonne.

Ms. Yvonne Beaupré: Ultimately, it will be the Federal Court that will interpret this section and tell the board whether or not it has standing, based on this section.

Mr. Rob Anders: My worry with this whole thing is that in speaking of the board in terms of being a quasi-judicial body, or a court, and having the ability to make representations before other courts, as it has done in the past in the Greyhound case and others that you've mentioned, I wonder whether or not in a sense this may in some respects then be muddling jurisdictions by giving the board this ability to go in and call its own terms before the courts that it's asked to appear before.

Mr. Michael McDermott: I think that it's clarifying rather than muddling. It's making it clear what the board can address when it appears before a court, and it cannot go beyond those. The court will have a clear yardstick to judge when it exceeds the purpose of its appearing before a court.

• 1200

Mr. Rob Anders: If the practice as it currently is that a court may determine when and how the board may present before it, that seems to me a pretty clear indication of what the jurisdiction is: that the court may choose whether or not to call a quasi-judicial body such as the board. With this change now, it gives the board more authority and I think the ability to therefore assert its own dominance, as it were, in fields where it would have strictly been out of the court before.

Mr. Michael McDermott: It clarifies standing but limits the scope of standing. Smaller courts have bigger courts and medium courts have even bigger courts.

You can see something starting with the CLRB trying to appear before the Federal Court and being refused standing and then going to the Supreme Court and getting standing. This clarifies something, and it's aimed at being helpful to the users of this code. It will be understood by the users of this code, I think, in that light.

Mr. Jim Gouk: Maybe you could clarify something for me, for starters, since I'm not a lawyer and I don't have any kind of legal training.

Are we going to get into a court situation with a challenge to the decision of the board? You know, they're going before the court because someone is not happy with the position they've taken. Is that the kind of court situation we could ultimately find ourselves in?

Mr. Michael McDermott: That's usually what appeals are about, that somebody is not happy with a decision. Judicial review is a little different from a straight appeal, and we're talking here of judicial review.

One of the parties will take the matter from the decision of the board to a review level at the Federal Court. It is the parties themselves that will have prime responsibility for conducting their proceedings before that court, but the board will be able to explain again what its procedures are, to speak to its jurisdiction, so that the court will have the benefit of the board's expertise in that field. In determining the matter between the two litigants they can take advantage of that expertise.

What this says is that the court should perhaps take advantage of that expertise but only to a certain level. So we can get beyond this business of asking whether the board has standing. We're saying, yes, it does, but it has standing to do only certain, limited things. It doesn't get in there to get into the fray, so to speak, between the litigants. It gets in there to explain what its role is, and that's all.

Mr. Jim Gouk: Okay.

If you have a situation in which a decision of the board has been challenged, if Mr. Anders and I are protagonists in this situation and the board makes a decision that happens to favour Mr. Anders' company or my union—or his union, whichever it happens to be—we're not going to court to challenge anything Mr. Anders' company or union has done, because he didn't make this decision, the board did. I would be going to court then to challenge the decision of the board.

Is there fairness and balance, or even the perception of fairness and balance, if you and I are going to court but some rule has been passed that gives you powers over that which I have as the person appearing in court who's opposed to what you've decided or what action you've taken?

Mr. Michael McDermott: You're actually appearing before the court to challenge whether the board reached the decision in a proper fashion. You're not really challenging the outcome of the decision as such. You're asking these types of questions: Did it exercise its powers properly? Did it go beyond them? Did it not observe natural justice; for example, did it not give everybody the right to a full hearing to make their views known, to make their representations on those kinds of things? The board will be responding to those kinds of arguments—“Yes, we did”—and the court will judge it at that point.

Mr. Jim Gouk: Would a reasonable analogy be that you and I have a contract and I'm going to court to fight you about this contract, not because of the provisions in the contact but because of the way you have carried out the contract, the way you have made some decision based upon that contract, with which I happen to disagree? Would that be closer to an appropriate analogy?

Mr. Michael McDermott: I don't see it quite that way.

Mr. Jim Gouk: I'm trying to put this in lay terms. I'm not an expert in the higher things of this. I'm trying to get it down to simplistic things that everybody can understand, so we can relate to it and then see if it meets a reasonable test.

• 1205

Mr. Michael McDermott: In terms of the scope of a bargaining unit, you have the example of you and Mr. Anders representing a company and a union respectively, or whichever way around it was. There's been a certification. As the employer, you have some problems with the scope of the bargaining unit. The board makes a ruling, and you—one side or the other—are concerned that you hadn't been heard properly. You're dissatisfied with the scope of the bargaining unit ruling. One of the reasons you're dissatisfied is that you don't think you were given the proper opportunity to make your representations.

That's the type of issue you could take to the court on review, is it not, Yvonne?

Mr. Jim Gouk: So this would give the board the power to go before the court, then, and essentially say, yes, there were, and because we have standing here, you have to accept that.

Mr. Michael McDermott: Well, they would explain what they did. The court would determine whether it's acceptable or not.

Mr. Jim Gouk: But they can do that anyway, can't they?

Mr. Michael McDermott: Not necessarily. In some cases they may not have been. We're saying they can go, but that's all they can speak to. They can't get involved in other matters. They get involved in jurisdictional matters and they get involved in natural justice matters. They can say whether they heard people or not, or produce the record. The court will then decide whether a hearing was given, whether sufficient opportunity was given to both parties to make their representations. That's basically what it does.

Mr. Jim Gouk: So you're saying that as it stands right now, if I were going to court and you were the representative of the Labour Relations Board, and I was a dissatisfied employer saying that you didn't give me a fair hearing, the Labour Relations Board is not even allowed to come before the court and say, “Yes we did, and here's the proof”?

Mr. Michael McDermott: At the moment it's not clear in the law that they would be able to go before that court. I think in most cases the courts will accept it, but it's not clear.

Mr. Jim Gouk: I think it's reasonable that something be there that says the Labour Relations Board is allowed to go before the court and defend its position. I'm just concerned that the way this is worded suggests that they have some powers or some legal standing in the court that goes beyond that of the plaintiff in a particular case—that they may have some superior position to the plaintiff. I don't ever want to find myself in the position of going to court where the person I am opposing in the court has a higher legal standing than I do.

Mr. Michael McDermott: I don't view standing in that sense. Standing is the ability to appear.

Maybe Madame Beaupré could respond to that particular point, because to my knowledge—and I'm not a lawyer—standing is the ability to appear.

Ms. Yvonne Beaupré: That's correct.

Mr. Jim Gouk: Okay. I go back to what I said before, then. Wouldn't it be better worded in such a way that simply says the board has the right to defend its decisions in court? I'm concerned that this implies that there's some superior standing that they get. We've used the words “improved” or “enhanced” standing throughout the discussions on this particular clause from your side, and I'm just concerned the implication is that they have some position that is superior to that which a plaintiff in a particular challenge may have.

Ms. Yvonne Beaupré: First of all, the plaintiff, as you call him, is the one who would apply to the court, so he has all avenues of challenge available to him. The board is limited as to what it can make representations to the court on, and therefore it is not in a higher position than the plaintiff.

Mr. Jim Gouk: Are there any circumstances now in our court system where the plaintiff or the person who brought forward the complaint can make some accusation against the board and the board would not be allowed to defend that position?

Ms. Yvonne Beaupré: Yes, it is very common. The board gives its reasons in writing, if it gives any reasons. To a large extent a tribunal is expected to explain its actions by its reasons or by its order, and from then on it has to remain silent. The idea is that the tribunal should not be in a position to defend itself.

Mr. Jim Gouk: But are we in an archetypical court situation, where there are two sides...? If a company brought forward a complaint that they were not happy with the decision, if they become in essence the plaintiff, is there a defendant side? If so, who would it be in that type of scenario? If it's a union versus the company, and the board makes the decision in favour of the union and then this goes before the court, is primarily the company the plaintiff and the union the defendant?

• 1210

Ms. Yvonne Beaupré: That's correct.

Mr. Jim Gouk: So the union is represented there on their side of this. Can they not call the board as a witness to testify as to how they arrived at that decision?

Ms. Yvonne Beaupré: No.

Mr. Jim Gouk: They cannot call witnesses?

Ms. Yvonne Beaupré: Well, in judicial review there are no witnesses in the ordinary course of things. It's a paper exercise with an oral hearing to follow from the written representations. It would be considered improper for anybody to try to get evidence from the board other than what the rules of court allow them to do.

Mr. Jim Gouk: Could the counsel for the defendant in this case bring forward such evidence in its presentation to dispute any claims made by the plaintiff's counsel?

Ms. Yvonne Beaupré: Usually they're points of law rather than evidence. The evidence should have gone in at the board level.

Mr. Jim Gouk: This then would allow the board to interject evidence into this hearing?

Ms. Yvonne Beaupré: Not in the ordinary course of things, no.

Mr. Jim Gouk: But if it does have standing—

Ms. Yvonne Beaupré: They have standing, but they have to proceed as the rules of the Federal Court allow them to do.

Mr. Jim Gouk: Which would allow them to put in, what, the evidence or just points of law?

Ms. Yvonne Beaupré: Only with leave of the court could they put in evidence. Only with the permission of the court could they bring in additional evidence.

Mr. Jim Gouk: Could the defence lawyer, with the leave of the court, do that now?

Ms. Yvonne Beaupré: Yes.

Mr. Jim Gouk: So really we're duplicating a power that is already there for whoever the defendant in a particular case happens to be.

Ms. Yvonne Beaupré: The idea is not that the board defend its decision; the idea is that the board explain its practice, or merely state—

Mr. Jim Gouk: That's not a point of law; that's now evidence. If you're explaining what you did, then you're giving evidence. If you say the law states this, this, and this, and we followed that, those are points of law, but if you start to explain the rationale behind something, then you're giving evidence, which you tell me you can't do. Are we going to allow the board the right to give evidence when no one else is able to do that?

Ms. Yvonne Beaupré: It depends on the point in issue. If it's a matter, as in the example I gave earlier, of a board explaining what happens when they have whole-panel discussions, then I'll grant you that the board will have to apply to the court to ask for permission to introduce additional evidence.

Mr. Jim Gouk: And they are the only ones who are going to be able to do this?

Ms. Yvonne Beaupré: Not necessarily. The other parties could as well, and it would be up to the court to decide whether there was anything that the parties could usefully contribute as evidence in those circumstances.

Mr. Jim Gouk: It comes back down to the same thing. Everything we do seems to lead back to the same road that says we're giving some power to the board. It is invariably going to be acting on behalf of the defendant. So we're weighting the way the court works.

In our court system we have primarily a plaintiff and a defendant, even if one happens to be the court itself; they then become the plaintiff. Charges are through the court. We have an adversarial system where we have a plaintiff and a defendant. In each and every case the standing of the board will be weighted towards the defendant, thus giving a disadvantage to the plaintiff each and every time one of these court sessions are heard.

Can we justify tipping the scales of justice towards either side? Is that not in essence what we're doing by giving them additional powers to defend their position—in other words, to act on behalf of the defendant?

Ms. Yvonne Beaupré: I would question whether they are defending anything. The idea is that they be neutral—

Mr. Jim Gouk: I would really be puzzled if they went and argued against themselves.

Ms. Yvonne Beaupré: —that they explain without trying to justify—you know, to take a particular side's position.

Mr. Dale Johnston: Mr. Chairman, can I just ask one quick one?

The Chairman: Go ahead.

• 1215

Mr. Dale Johnston: It would seem to me, Madame Beaupré, that—and this is something I've asked Mr. McDermott before—there is no method by which the two parties that the board's decision affects have any avenue of appeal, as far as the decision is concerned. Is that correct?

Mr. Michael McDermott: No, that's not correct. What I said before is there are two levels of appeal. One is appeal internal to the board.

Mr. Dale Johnston: Which is process.

Mr. Michael McDermott: No, appeal on the facts that came before the board on the matters of law and on board jurisprudence. That is an appeal that can be launched.

Following a decision of a three-person panel, an application for review can be made, and the board has procedures. I think one of them is it can go to another panel or it can go to a full plenary session of the board, and that can be reviewed. And there have been reversals of decisions in that way.

The second avenue is this one of judicial review, which goes to the Federal Court of Appeal in the first instance, and that's the issue where the board has not allowed natural justice to take place. Most commonly it would be not allowing sufficient opportunity for representations to be made, and the second case is the excess of jurisdiction. The board's jurisdiction is established by the code, by and large, and by certain other things as well.

It's clear the board does have jurisdiction to hear constitutional issues. For example, in the first instance, I believe the board can hear even charter issues. But, for example, if the board made a charter decision that was incorrect, I presume the courts would have an opportunity to correct that later on, in that kind of review. Or if the board made a decision on a constitutional matter, as Madame Beaupré indicated in the Greyhound case, and it was found to be incorrect, then the courts can correct that matter.

Mr. Dale Johnston: That case you're referring to was a matter of jurisdiction. It actually was a provincial matter and it was being dealt with by the federal.

I'd like to go back to something Mr. Gouk was trying to get clarified, and it raised some questions. Madame Beaupré, you said you didn't think the board would be there to defend itself, but in a sense it would have to maybe not exactly defend itself but defend the process by which it arrived at the decision. Isn't that correct? At the risk of getting on the bandwagon—it seems everybody here today is anxious to declare they're not a lawyer, and that certainly is the case with me—do I have that understood, or am I still on the wrong track?

Ms. Yvonne Beaupré: I suppose it depends on one's understanding of “defend”. One would expect that the board would argue that it had jurisdiction to consider the matter, which it did. If you call that defending, yes. But it's not as if.... To me, it's a different tone to the representations that would be made by the parties.

Mr. Dale Johnston: It seems that's a very fine line there.

Ms. Yvonne Beaupré: It may be.

Mr. Jim Gouk: I have a couple of follow-ups as well, Mr. Chairman.

It was said that in essence what the board would be doing is giving evidence—evidence that they followed a particular appropriate procedure and that they did things they were supposed to do. That certainly to me is a matter of defence. They're defending that they did the right thing. That is a classic example, I would think, of defending.

You said that, yes, they are in a way giving evidence, and you said that the plaintiff, for example—the person who represents the plaintiff-type position in our adversarial system—may be allowed to give evidence, depending on the point in issue. So in other words, it might be to their advantage to give evidence. They may or may not be given permission, but the board would, in order to clarify that it followed the right steps and that it had the authority to do what it did. It's in essence giving evidence that it did in fact have the authority to do what it did. In other words, it's allowed to testify on behalf of itself.

• 1220

I would argue it is defending itself. It's certainly not there to say it screwed up. It's there to say it did the right thing and the plaintiff is therefore wrong in his position.

Are we not, by virtue of that, saying the defendant side, of which the board is part, is given a power that the plaintiff may or may not be given, using your words, depending on the point in issue?

Ms. Yvonne Beaupré: I'm sorry, I have to think about this.

Obviously the one who is applying to the court to reverse the decision is not happy with it.

Mr. Jim Gouk: That's right, the plaintiff.

Ms. Yvonne Beaupré: The board, if it's a question of introducing evidence, will need to get the permission of a court. I want to make that clear. It may not be allowed to do it. It all depends on what the issue is.

Clearly to the extent that the board is explaining or putting forth the position it acted properly, the respondent will likely be taking the same position as the board. The person who won at the board level is not very likely to challenge that the board had jurisdiction, for example.

In the ordinary course of things, yes, the applicant who is dissatisfied with the board's decision will appear disadvantaged, if you will, by the board being there to explain why it had jurisdiction, why it respected the rules of natural justice, if that is the issue. But bear in mind that the board will be able to make representations only on limited issues, not necessarily on all the issues in the case.

Mr. Jim Gouk: Are you saying the plaintiff is going to go before the court and say the board screwed up and, without the leave of the court, all the board is going to be able to say is, no, it didn't? It's not going to be able to give evidence to support the fact that it says it didn't?

Ms. Yvonne Beaupré: As I mentioned before, in applications for judicial review it is not customary to introduce evidence at that stage.

Mr. Jim Gouk: With this, we're talking about changing something. You talk about what's customary. That is irrelevant if we're changing something. I'm saying if it is changed the way this clause would permit, my understanding is that you're saying the plaintiff is going to come before the court on appeal and say he didn't think the board did the right thing, he didn't think they followed the right procedure. All the board is going to be allowed to say is, yes, it did, or yes, it did, and then give evidence to show how it did.

Ms. Yvonne Beaupré: First of all, I don't know that we are changing anything.

Mr. Jim Gouk: Well, let's just cancel the whole clause and we won't have to worry about it, if we're not changing anything.

Ms. Yvonne Beaupré: Second, there is more than one way of getting evidence before the court. Usually these cases are heard on the record, as we say, on paper. There are procedures under the Federal Court rules whereby the tribunal can be made to put all the documentation or evidence it had before it before the Federal Court. A lot of cases are decided purely on the paper that is produced by the tribunal and by the parties; it's everything that was before the board at the first level. It's nothing new.

Mr. Jim Gouk: So what exactly is the advantage of giving the board standing if it's done on that basis?

Ms. Yvonne Beaupré: It is to ensure that the board can make representations to the court on issues that are important to it in terms of its process.

Mr. Jim Gouk: In other words, it's to justify the position it took.

Ms. Yvonne Beaupré: If you will.

Mr. Jim Gouk: Okay. If that's the case, in essence they are providing evidence to show why they were right, but the plaintiff may or may not be allowed to show evidence to the contrary, only by leave of the court.

• 1225

He's stuck in the old system that exists now, and we are providing enhanced standing to the board if we pass this.

Ms. Yvonne Beaupré: With all due respect, no.

Mr. Jim Gouk: Can you explain why?

Ms. Yvonne Beaupré: On judicial review applications these are the rules of court. This has nothing to do with these amendments. The rules of court specify how the parties are to proceed on the application. If anybody wants to put in additional evidence that is not before the court, they need permission of the court. The board is going to be in exactly the same position as either of the parties or both of the parties.

Mr. Jim Gouk: Except by your own words, they're going to be allowed to present certain evidence to support their position.

Ms. Yvonne Beaupré: I did not say that, sir. I said with leave of the court they can present additional evidence.

Mr. Jim Gouk: I thought you said they were able to put in written statements that basically justified their position.

Ms. Yvonne Beaupré: Those are submissions. They are not evidence.

Mr. Jim Gouk: If it's accepted by the court, is that not a proviso of evidence? Is the plaintiff then, without leave of the court, able to put in all his evidence as to why he thinks they didn't follow the proper rules?

Ms. Yvonne Beaupré: Evidence is one thing and submissions are another. The parties will be able to file submissions or make submissions to the court, as a right. If it comes to evidence, anybody who wants to put in additional evidence will have to get leave of the court.

Mr. Jim Gouk: Right now the defendant or the board is not able to put a submission in to the court.

Ms. Yvonne Beaupré: They can put in submissions, yes, on the same basis as that which is provided in the bill.

Mr. Jim Gouk: If they're allowed to put a submission in now, what are they going to be allowed to put in after we pass this that they can't put in now?

Ms. Yvonne Beaupré: Nothing else.

Mr. Michael McDermott: We're simply clarifying what the jurisprudence is.

There's a bit of a semantic discussion here as to what is evidence, what is an explanation, and what's a submission. As I said, I'm not a lawyer. I joined the ranks of the non-lawyers at the committee, but evidence would seem to me to be, “Where were you on the night of the 13th?”, and that kind of thing.

A submission or an explanation of a board policy or a board procedure is, I suppose, in lay terms, evidence, but I don't think Madam Beaupré would use the word “evidence” for that kind of thing. That would be more a “submission”.

What this does is explain to the people who use the code and have to work under the code what they can do, so they don't have to search all the records again to find the jurisprudence of the boards, the courts, and so on in knowing what they can do.

The Chairman: Mr. Johnston.

Mr. Dale Johnston: I think this has certainly enlightened me on part of this process. I was under the impression, Mr. Chairman, that the board would actually physically have to appear in court. What I hear Madam Beaupré say is that this would be more like an appeal of a court case, in which it's just simply a review of the papers and the positions...how all of this was arrived at. It really would not be an instance in which the parties would physically be in the courtroom.

Do I have that right?

Ms. Yvonne Beaupré: No, sorry.

Mr. Jim Gouk: We're back to square one.

Ms. Yvonne Beaupré: The procedure of the Federal Court is that one files written submissions and then one appears before the court to argue on those written submissions.

Mr. Dale Johnston: Just about the time I thought I had it all figured out, we go right back to square one. I'll defer to my colleague.

Mr. Rob Anders: Mr. Chairman, if the purpose of this clause 9 is to clearly determine what the abilities of the board are or what its standing is with regard to appearing before the courts on questions of its jurisdiction or what not....

What I'm seeing here after the word “standing” is:

The Board has standing to appear in proceedings referred to in subsection (1)

If we're looking for precise language, would it not be more appropriate to have “the Board has standing” and then afterwards to put in “if requested” or “if requested by the court”? This is important stuff.

• 1230

So what would be better wording, Ms. Beaupré, for an amendment? Would it be to have “if requested” following “standing” or “if requested by the court to appear in proceedings referred to in subsection (1)”?

Mr. Michael McDermott: We're not making this something totally at the discretion of the court. We're saying the board does have standing but for the limited purpose put in here. It also clarifies the jurisprudence. We're not leaving this to the discretion of the court, other than allowing the court to have discretion not to let the board go beyond the reasons for which the board can appear.

Mr. Rob Anders: Mr. McDermott, I think you touched on the heart of the problem.

Our problem, which is what we talked about in this morning's session, is that clause 9, as it's currently worded, would give the board the ability to make a submission whether or not the court deems it necessary. I don't think we should be giving the board that type of power, to be able to go into any court it decides to go into and define its jurisdictions and its powers. I think that is the responsibility of the court. That's the way it was laid out, and that's the way it should remain.

In that respect, I think it's important that at the end of clause 9 it stipulate that when the board is called upon it will make a submission based on its jurisdiction policies and procedures. But in terms of its standing, its standing should only be in cases in which the court has actually requested its presence, not when the board feels it wishes to exercise its muscle.

In that respect, I'm asking whether or not there would be better clarification to add the words “if requested” or “if requested by the court” following the word “standing” in clause 9.

Mr. Michael McDermott: The board already has standing to appear before the court under court rules and under jurisprudence, but that's standing to appear for certain purposes. This confirms that standing, which has been established in jurisprudence, but also draws the line at the purposes for which the board can appear, so that it doesn't get there and make submissions on matters it should not be making submissions on. That's basically what it's doing.

We're trying to make this code user-friendly. There is a whole series of things in this code that basically put into the code existing jurisprudence. This is one of them. It's so that people who use the code can go to the code and know what the jurisprudence is or at least know what that jurisprudence boils down to, rather than having to plough through the various orders of courts.

Mr. Rob Anders: The way I read this, Mr. McDermott, right now you say the board has standing in these matters. You're saying there have been questions in the past of whether or not the board was exceeding its authority, was exceeding its jurisdiction. Those are words out of your own mouth today. If that's the case, seeking to have this standing legislated gives the board a power that it previously did not have available.

I want to nail it down to make sure the board is not able to exceed its jurisdiction and to muddle the waters, as it were, with regard to the courts it's appearing before on matters of its own jurisdiction.

I think it's important to add in that wording so we do not allow the board to exceed its jurisdiction. If that's the problem, if that's why we're putting this in, if that's where questions have arisen before, then let's put it in writing.

Mr. Michael McDermott: I believe the wording you're suggesting, Mr. Anders, would completely defeat the purpose of the amendment and would fly in the face of existing jurisprudence.

Mr. Rob Anders: I think it defines it better, Mr. McDermott.

The Chairman: Mr. Johnston.

Mr. Dale Johnston: I move that we now adjourn.

• 1235

The Chairman: Mrs. Chamberlain.

Mrs. Brenda Chamberlain: Mr. Chairman, I will concur today, but I would just say to you that we do need to work on this bill. We'll have to continue at some point on this, but today I will concur.

The Chairman: There is a motion that the meeting adjourn.

(Motion agreed to)

(Clause 9 allowed to stand)

The Chairman: We stand adjourned to the call of the chair.