INDY Committee Meeting

STANDING COMMITTEE ON INDUSTRY

COMITÉ PERMANENT DE L'INDUSTRIE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 3, 1999

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[English]

The Chair (Ms. Susan Whelan (Essex, Lib.): I call this meeting to order pursuant to an order of reference of the House dated Tuesday, November 3, 1998: consideration of Bill C-54, an act to support and promote electronic commerce by protecting personal information that is collected, used or disclosed in certain circumstances, by providing for the use of electronic means to communicate or record information or transactions, and by amending the Canada Evidence Act, the Statutory Instruments Act, and the Statute Revision Act.

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We're very pleased to have with us today members from the Federally Regulated Employers—Transportation and Communications. We have Mr. Don Brazier, director of labour relations from CP Rail; Mr. David Olsen, assistant general counsel for Canada Post; and Ms. Leslie-Anne Lewis, manager, employment legislation, from CN Rail. Unfortunately the CFIB is unable to be with us, and so it's all up to the Federally Regulated Employers to lead us on today.

I'll turn it over to Mr. Brazier.

Mr. Don Brazier (Vice-President, Labour Relations, CP Rail; Federally Regulated Employers—Transportation and Communications): Thank you, Ms. Whelan.

I overheard somebody ask what FETCO is. You spelled out the acronym. It is a group of 24 organizations in the transportation and communications business. It includes employers such as Bell Canada, Canada Post, the employers here, and other large employers in the transportation and communications sectors.

What we have in common is that we all come under federal jurisdiction, and for the most part, because we have employer associations included in our group as well as individual employers, we're heavily unionized. We are a group that's been in existence now for about 15 or 16 years, and we represent the interests of the employer community at the federal level in matters that relate to labour and employment relations and related activities.

Now, the understanding we got was that we'd be asked to provide a short summary of our brief. We provided a brief to the clerk about three weeks ago in English and French, and what I am about to read is extracts from that, summarizing the main points we would like to make.

Electronic commerce is clearly the prime purpose of this proposed legislation. When he appeared before this committee last December, the minister stated in his presentation, when dealing with the employment issue, that Bill C-54 is “an essential component of our domestic and international electronic agenda”. Unfortunately the bill, certainly as it relates to employment matters, goes far beyond that, and it is FETCO's belief that whereas it appears to be intended to provide consumer protection, insufficient thought has been given to its implications in respect of the maintenance and use of employee records and information.

Getting into specifics, one of the major problems with the bill is that not only are the exclusions in collecting data without the employee's consent very narrow, but the bill will not even allow us to keep such data confidential. In other words, we believe the bills sets an unintended trap that allows an employer to collect the information pursuant to subclause 7(1) without consent because consent might prejudice its use, but if the employee happens to ask to see it, the legislation offers less ability to deny access—that's through subclause 9(1).

The fact that access to the employee after the information has been properly collected might also prejudice the use of the information does not appear to have been recognized and taken into account. We've reviewed the bill and have found examples of a potential detrimental application of the bill on employee relations.

We've take two examples for purposes of the summary here. There are more examples in our main brief, and we don't believe the examples are in any way exhaustive.

Regarding information about an employee against whom a complaint has been raised—for example, a sexual or racial harassment complaint—it is our interpretation of the bill that we could collect information concerning an employee who is alleged to have committed a sexual harassment, but we would not be able to provide confidentiality to the complainant. This is because the alleged harasser could well have access to this information under the bill's access provision.

While also recognizing that at some point the alleged harasser would have to be confronted with evidence at the preliminary stages of investigation, we believe that we need to provide confidentiality to the complainant. We have a real fear that this legislation may dissuade victims of sexual harassment from coming forward.

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Information about employees provided in the collective bargaining process: Another concern raised by the bill is the prohibition on the employer's providing personal information to the union on members of a collective bargaining unit without individual consent. In labour relations terms, a written agreement entered into by a certified union to disclose information is deemed to be made with the consent of the employees in the bargaining unit. This goes as far as the union having access to employee data about individual employees without obtaining their individual consent. The consent is considered to be given to the bargaining agent under his rights as the bargaining agent for the employees.

Nothing in subclause 7(3) would seem to permit the provision of this information to the union absent employee consent. The bill could therefore put the employers' existing contractual obligations and rights, which flow from the Canada Labour Code, in direct conflict with its statutory obligations under this proposed legislation.

I'd like to touch on a couple of jurisdictional issues. Clause 25 of the bill reads as follows:

The Minister of Industry may, with the approval of the Governor in Council, delegate to any person with whom the Commissioner may consult under subsection 23(1) any of the Commissioner's duties or powers under this Part.

This means delegating responsibility for the administration of privacy to the provinces. FETCO has difficulties with this. The provision found in subclause 23(1) with regard to provincial legislation that is “substantially similar” gives us little comfort. In fact, no two pieces of legislation are identical. This provision almost ensures differential treatment.

Under federal jurisdiction you expect to be governed with one set of rules and laws across Canada. Many FETCO members are interprovincial in scope, and one of the advantages of being under federal jurisdiction is that you're faced with one set of procedures coast to coast. This provision would require us to abide by different provincial requirements to the extent that such delegation took place. Delegation would result in a patchwork set of rules that not only would make compliance more cumbersome but also would set different disclosure rules for employees depending on where they live. In situations involving employees in more than one province, it would establish differential rights and procedures, a bad precedent.

We're especially concerned about the implications with regard to the collective bargaining process at the federal level. We can see no justification for provisions in collective agreements or issues at the negotiating table being subject to decisions, which are not necessarily compatible, of the various provincial privacy commissioners.

Furthermore, FETCO would like to see the same provisions prohibiting access to the requested information by an applicant that will be found in this legislation to be also incorporated in the Privacy Act currently covering the federal public sector. This legislative arrangement would permit employers in the federal jurisdiction to be governed by one set of rules. Without the exemption provided in Bill C-54 codified in the Privacy Act, there would be different disclosure rules for employees working in the federal jurisdiction. Given that federal crown corporations such as Canada Post and the CBC are covered under the Canada Labour Code, they should also be covered by this legislation.

Perhaps for clarification I should just point out that what we're requesting here is not for the whole Privacy Act to suddenly disappear. We're only talking about those organizations covered by the Privacy Act that are also covered by the Canada Labour Code, which really means crown corporations. The bulk of the organizations under the Privacy Act would remain. We're only talking about those such as Canada Post and the CBC, as I have indicated.

In summary, an entire statutory regime, including provisions on the maintenance of and access to employee information, already exists to govern the relations between employers and their employees and unions. FETCO believes existing jurisprudence and statutes such as the Canada Labour Code and the Canadian Human Rights Act provide an appropriate balance between the complex competing interests of the employers' right to collect information and the employees' right to privacy. For example, part I of the Canada Labour Code provides for duty of fair representation, and part III of the code has provisions concerning the retention of employee records.

Absent consultation with employers on the significant and apparently completely unanticipated consequences of the proposed legislation on information necessary to the conduct of the employment relationship, this legislation would be disruptive to the delicate balance between employees' right to privacy and employers' right to collect and use information relevant to the workplace achieved through an elaborate set of rules developed in jurisprudence. Examples of such disruption have been included above, and as I say, there are more in our brief. Therefore, it is the request of FETCO that employment data be excluded from the provisions of this bill.

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The Chair: Thank you very much, Mr. Brazier.

If there are no other opening statements, then I'm going to move to questions, and we have Mr. Jaffer first.

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): Thank you, Madam Chair.

If I understand correctly, FETCO is concerned that the collection of information for human resources management purposes is not really a commercial activity but merely a matter of internal housekeeping for any business or organization, and that therefore this information collected by a company on its employees should not fall under Bill C-54, as it currently does. That's the way I understood it. Maybe you could elaborate on why it's important to differentiate between private information used commercially and private information used in a non-commercial fashion. Shouldn't all private information be treated the same despite the purpose for its collection or use?

Mr. Don Brazier: First of all, maybe I'll just make a couple of observations, and then my colleagues can add to that.

If you read the minister's statement to this committee, look at the press release that was given when the bill was introduced in the House of Commons, and read the material that was collected earlier through the consultation process, it seems that the focus of this legislation relates to the transmission of electronic information. Having read the proceedings of this committee on the web site, it indicates that's a matter of significance.

It actually wasn't until late in the game that we realized what were the implications of this legislation. We thought that basically this legislation was related to things, to give a simple example, such as buying books on the Internet and to commercial activity. Now we find that not only has it gone beyond commercial activity but also it has gone far beyond electronic information, because the definition of information in the bill covers just about anything. It includes written form, e-mail, documents of any description, hand written, typed up, and so forth and so on.

We don't think this vehicle is the right one. If there's a case to be made that legislation is required at the federal level for the private sector, which is basically what we're talking about since there already is a Privacy Act for the public sector, it should be looked at totally independently. Our concern is that the bill has been drafted to deal with commercial issues and doesn't capture some of the nuances you have in labour legislation. Perhaps it's trying to cover up too much in the legislation.

Maybe some of the drafting was intended for different purposes. For example, the definition of “use” contained in the bill seems to suggest you can't transmit data within an organization. In this day and age, organizations of the size the three of ours here represent plus most of the other FETCO members would keep information centrally. For example, our head office is in Calgary, so in our case an employment application would be sent there. If you read the bill literally, it says that you can't do that. You can't transmit it. It has to stay where the person filled out the application form. Obviously that was never the intent of the legislation. That definition was probably put in to cover some aspect of commercial activity that's totally unrelated to employee data.

So that's an example where we're concerned that the bill is trying to have one central purpose and really, almost as an afterthought, the employment information aspect has been sort of imposed on it.

I don't want to dominate the conversation. Perhaps Leslie-Anne or David wish to comment.

Mr. Rahim Jaffer: I just have one follow-up question, Madam Chair.

The Chair: Mr. Jaffer.

Mr. Rahim Jaffer: That's the contradiction you also point out in your brief. Specifically when it comes to subclause 7(1), it says that private information can be collected without consent provided that the process of seeking consent would compromise the purpose of collecting the material, and then in subclause 9(3) it states that this information can only be kept private if it was collected for the purpose of a dispute resolution process.

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If FETCO can't be exempted from Bill C-54, would you support the elimination of paragraph 9(3)(e), which you described as too narrow and restrictive in the prevention of access of private information? Would you just obviously allow subclause 7(1) to stand? Would that be enough flexibility to cover your concern?

Mr. Don Brazier: I'll make a comment and then I'll ask David to make some comments, because he's covered, by virtue of being with Canada Post, to raise some of the problems associated with that piece of legislation. I might just add for the record that we don't regard that the protections given the employer against disclosure in this bill meet our needs as much as they do in the Privacy Act. So already we don't think we have the same kinds of protections we'd have if we were covered by that legislation.

But in answer to your question, there are a number of areas where we have concerns. Clearly the vast bulk of the information should be accessible to the employee; we recognize that. What we're looking for here are areas that we believe would interfere with proper employer-employee relations, for example, premature disclosure information in harassment complaints, or premature disclosure information related to an investigation of an incident.

If you're in the transportation business you have incidents and accidents that have to be investigated. Sometimes they involve employee discipline. We have to collect that information. At some time, if disciplinary action is going to be taken against the employee, they need to have access to this information, but we need the right to be able to collect this and do our investigation in a process that doesn't provide information prematurely.

We have the problem with the Canada Labour Code. We have provisions in our collective agreements that allow us to provide the union with information. Some of it's fairly harmless stuff, like addresses and maybe telephone numbers. In the case of the company I work for, we provide the discipline record for the employee by virtue of the fact that if it's in the collective agreement, the employee de facto has consented to it. That type of thing would be in doubt at best with this legislation. Those are the kinds of things we think we need protection for.

Somewhere between taking division 1 out completely and where we are right now is probably something we could live with. I'm sure obviously there is. But in terms of the specific question, I can't say that just dealing with that section would be sufficient.

The Chair: Mr. Olsen, do you have anything to add to that?

Mr. David Olsen (Assistant General Counsel, Canada Post; Federally Regulated Employers—Transportation and Communications): Perhaps I could elaborate a bit, just to repeat the policy concerns. I suggest it's crucial for employers to have the ability to collect information without the fear of having to disclose that information prematurely, that is, before there is an opportunity to complete investigations or to make decisions regarding the resolution of problems in the workplace. Maybe I could base that on the current provisions of the Privacy Act, look at that for a moment, and then look at the provisions in Bill C-54.

The current provisions in the Privacy Act obligate employers to turn over confidential documents to trade unions in the grievance arbitration process, in the workers' compensation process, as well as in proceedings before human rights tribunals. Let me just give you a couple of examples of cases we've been involved in over the years.

An employee in a postal plant engages in an assault on a fellow employee. Another female employee sees that assault. She gives a confidential statement to management saying “If this case ever goes to arbitration I will testify, but I don't want the other employee to know I witnessed this, and you don't have my consent to advise that employee that I was a witness.”

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That employee then, after having been disciplined and in the grievance arbitration process, seeks under the Privacy Act the disclosure of all of the witness statements. The privacy commissioner instructs my organization to disclose that document, even though the witness who wants to be protected will not consent. It's only after we're taken to the Federal Court by the privacy commissioner that the lady, who has since been transferred, then gives her consent to the disclosure of the document.

So that gives you an idea of how it works under the Privacy Act in terms of day-to-day labour relations.

Similarly, under the Canadian Human Rights Act, a complainant goes forward complaining about sexual harassment in the workplace. The person alleged to have been doing the harassment—and this is while the human rights investigation is ongoing—makes a complaint and a request under the Privacy Act. The privacy commissioner takes the position that Canada Post must disclose all of its confidential statements; we're on the verge of going to court on that case as well.

So from the employer perspective, notwithstanding the fact that in the collective agreements and in the rules of court for tribunals there are procedures that allow for even-handed disclosure of evidence, the provisions in the Privacy Act, we suggest respectfully, skew that in favour of the complainants in situations I've described.

In the Privacy Act there is a section where an institution may refuse to disclose documents if those documents were generated in the course of a lawful investigation. That's subsection 22(1) of the Privacy Act. So documents that are generated or produced in the course of an investigation may not be disclosed.

However, there's nothing in the Privacy Act that precludes the disclosure of those documents once the investigation is concluded and you're into some sort of dispute resolution process, such as rights arbitration, before the Canadian Human Rights Commission or Canadian Human Rights Tribunal, or before the Workers' Compensation Board.

The drafters of this bill have sought to cure some of the mischief in paragraph 9(3)(e), which allows an organization not to give access to personal information if the information was generated in the course of a formal dispute resolution process. However, my understanding was that the provisions that would have protected information generated in the course of an investigation that preceded the formal dispute resolution process would have been protected.

In the Privacy Act information generated in the course of the investigation is protected, and in Bill C-54 the information generated in the dispute resolution process is protected, so it would seem to me that at the very minimum information or documents generated in the investigation process, and then if it goes into a dispute resolution process, ought to be protected throughout the entire process from investigation, through the conclusion of the dispute resolution process.

That's how I see it in a nutshell.

The Chair: Thank you very much, Mr. Olsen.

I remind both those asking questions and those answering questions that we have to try to be a little briefer in our conversations, if that's possible.

I will turn to Ms. Jennings now.

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[Translation]

Ms. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.): In your presentation, you said that, although the Quebec legislation was fairly comprehensive, it still contained certain deficiencies. For example, apparently the legislation is used for unintended purposes. You mentioned the fact that one federal employer has launched legal proceedings to block the application of the Quebec law to its records containing personal information. I'd like to know the name of that employer.

If the proceedings have already been launched, this information is in the public domain and can therefore be disclosed.

[English]

Mr. Don Brazier: Maybe David knows more about the details than I do, being a lawyer, but the employer is Air Canada. My understanding, based on second-hand information, of course, was that an employee of Air Canada felt he had nowhere to go because there was no federal legislation equivalent to the Quebec legislation—because the federal Privacy Act, of course, doesn't cover private employers—and filed a complaint with the Quebec privacy commissioner. That's what started the dispute. That's all I know. I don't know where it is; I don't know whether there's been a trial or where it is. David may know more about the situation than I do.

The Chair: Mr. Olsen.

Mr. David Olsen: I'm sorry, I'm not familiar with the case at all.

[Translation]

Ms. Marlene Jennings: Since we've already heard about the Air Canada case, I believe that this airline is in fact the company involved.

I must tell you that your arguments have not convinced me today that this legislation will apply to the possession, gathering, use and transmission of personal information on employees. I've examined this law thoroughly and my interpretation is very different from yours. It's unfortunate that we have so little time and that you don't have the opportunity to elaborate on your viewpoint and to convince me.

Paragraph 4(1)(c) clearly stipulates "in connection with the operation of a federal work, undertaking or business". In subclause 2(1), under the definition of the expression "federal work, undertaking or business", is a fairly complete list that would appear to include a business that does contract work in a number of fields under federal jurisdiction. I therefore believe that subclause 4(1) means that the legislation applies to any employer that collects, uses or communicates information, and that in fact undertakes work for the government under the terms of a contract. In paragraph 2(1)(c), we read the following:

(c) a line of ships that connects a province with another province, or that extends beyond the limits of a province;

I do not by any means interpret this the same way that you do. Once again, I'm aware that your presentation must be fairly short, for lack of time. I've read your brief and I'm still not convinced that you're right.

[English]

Mr. Don Brazier: I think it's well known what industries come under federal jurisdiction. It's not true to say everything that comes under the Canada Labour Code will come under this legislation, because crown corporations would be an exception. We've covered that separately and David has also spoken to it. Our concern is not defining jurisdiction. If and when this legislation is passed, perhaps the Air Canada issue will get resolved, because Air Canada clearly comes under federal jurisdiction.

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Our concern is not defining jurisdiction. I think it's clear who's covered in the legislation. The FETCO members are covered because we're federally regulated. Our concern is not that. Our concern is clauses 23 and 25 of the legislation, which allow the Governor in Council to delegate administration of the act, enforcement of the act, in relation to subclause 23(1).

If such legislation existed, in the way we read the bill, subclause 23(1) says the Governor in Council could ask the Privacy Commissioner of the Province of Manitoba, for example, to manage the federal statute, or have employees that come under federal jurisdiction within the geographic boundaries of Manitoba covered by its legislation. If such delegation took place all across the country, federally regulated employers would come under potentially ten different sets of legislation. Now, if we're misreading the legislation or the intent of the legislation, we'd certainly like to be corrected on that, but it looks as though the Governor in Council can delegate a responsibility for management of this issue to the provincial commissioners. We see that as meaning we would come under provincial law.

A voice: They're misreading it.

Mr. Don Brazier: I think we know it's not a question of defining us. That's the sole issue. It may be a narrow one in the sense that it may never happen, but it could be a broad one, depending on whether or not delegation ever takes place.

When we look at the Privacy Act, the current federal act that covers the public sector and is supposed to be basically the same as Bill C-54, we see sufficient differences. If the two acts remain the same, or if this remains the way it is, though, there is going to be different application. As David has pointed out, there is a significant difference. The right not to disclose information during an investigation process is not included in Bill C-54. That's a significant difference in the legislation, although these two pieces of legislation are supposed to be substantially similar.

We have, first of all, a concern about being administered by a provincial body anyway, because it results in potentially different treatment. We're going to have national employers, such as the three of us, effectively being covered by provincial legislation, which concerns us.

[Translation]

The Chair: Ms. Jennings.

Ms. Marlene Jennings: I'd just like to say that your interpretation is unfounded. I have just reread clauses 23, 25 and 27, and I believe that your interpretation of these three clauses is incorrect. I don't believe that an accurate interpretation would support the hypothesis that you have defended here today. Moreover, when he appeared, the Privacy Commissioner gave us an interpretation that is different from yours.

[English]

The Chair: Thank you, Madame Jennings.

Mr. Brazier, did you have anything further to add to that? No?

[Translation]

Mr. Dubé.

Mr. Antoine Dubé (Lévis-et-Chutes-de-la-Chaudière, BQ): You may have mentioned this at the beginning of your remarks, but I'd like to know whether, among the 24 organizations that you present, which include, among others, Crown corporations such as Canada Post, there are companies that do not fall under federal jurisdiction.

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[English]

Mr. Don Brazier: All the individual employers, such as our three—and I mentioned Bell Canada and the CBC as other examples—would come under federal jurisdiction. But because we have associations as well—the trucking association would be a good example of that—they could have members of their associations that come under a provincial jurisdiction, but they also have a lot of their members who could come under federal jurisdiction. Although it's not true to say that everybody's totally under federal regulation, the individual employers are. The only way an association could be become a member of FETCO is if a significant number of their member companies are under federal jurisdiction.

[Translation]

Mr. Antoine Dubé: I agree with you when you say that the bill casts a very wide net over the protection of personal information, going beyond electronic means. You said that the fact that it affects a large number of areas had lead you to take an even closer look at it.

What interests me in particular is the effect of this bill on provincial legislation. You have taken up some of the arguments that we, the Bloc Québécois, advance, but to a different end. I would like to know your thoughts on this. Since there is already a law in Quebec that covers the protection of personal information, we have been told that the adoption of this bill would lead to different treatment for some businesses in the same sector, which is what you are denouncing, moreover. As an example of this double action, you also pointed out that companies regulated by the Canada Labour Code and Crown corporations would be treated differently. It's obvious that this would lead to many complications.

You were saying the Quebec legislation was more detailed. Although, on the face of it, this seems to be a compliment, you also say that it does not attain the objective as it doesn't settle the matter of distribution lists. In your opinion, how does that legislation compare with the bill we're examining here?

[English]

Mr. Don Brazier: I must apologize. Perhaps Leslie or David might have some knowledge of the Quebec legislation.

Our main comparison for the purposes of the implications of the legislation was to the Privacy Act, because organizations like the CBC and Canada Post are covered by the Privacy Act and are also members of FETCO. That's why we can talk quite authoritatively about the way the Privacy Act works. I'm sorry, but none of our members are familiar enough with the Quebec legislation to be able to speak the way David was speaking about the Privacy Act. I therefore apologize for not being able to speak on that piece of legislation.

[Translation]

Mr. Antoine Dubé: I'd like to know what you think about Quebec's present legislation on the same matters. We say there will be a double regime. Some businesses under provincial jurisdiction will want to engage in electronic commerce at the interprovincial or international level and will have to submit to federal jurisdiction, thus the double regime, and that will complicate things. I would like to hear what you think of Quebec's present legislation.

[English]

Mr. Don Brazier: In answer to that first question, it's a little bit outside of my area of expertise, but it does illustrate once again that we're covering different areas. I would expect that companies that come under provincial jurisdiction to be affected by international transactions of the type covered by this bill would be involved in a commercial activity. It's difficult to think offhand about how employment information would be involved here. If you operate in different countries, you'll have companies—for example, General Motors, which has an operation in Quebec and is U.S.-based—that I would expect are electronically passing information back and forth between Canada and the U.S. in the same way as my employer transmits information back and forth across Canada. We also have U.S. operations, and the same thing happens internationally as well. But we are federally regulated.

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I can't answer the question about how you deal with a provincial jurisdiction company—and General Motors is again an example—transmitting information internationally, when international relations come under federal jurisdiction. Unfortunately I can't speak on that, because it's not an area that I have any knowledge of. Again, however, I would suggest that it relates to the commercial aspects of this legislation, as opposed to the employment aspects.

The Chair: Last question, Mr. Dubé.

[Translation]

Mr. Antoine Dubé: You were saying the bill wasn't the best way to protect information on employees. If that is the case, what would be the best way of doing it while avoiding causing major inconvenience to business?

[English]

Mr. Don Brazier: I think the first thing we would suggest is to have separate legislation, to have legislation that specifically deals with the issue of employment, and, as a result of that, to have definitions in the definition. I used the word “use” as one example. It could be highly restrictive—unintentionally, probably—in terms of the application of the bill.

The second thing is to learn from experience. The experience under the privacy legislation, the current legislation that covers the public sector federally, has resulted in an enormous amount of litigation and disputes as to application. I think we can learn from that.

We're not satisfied at all that this legislation addresses some of the concerns that exist under the Privacy Act. But if legislation is needed, then we certainly believe it should be separate and apart from the bill that basically seems to be addressing electronic information and basically seems to be a commercial piece of legislation rather than labour legislation.

If you deal with employee relations information, if you deal with many in the private federal sector, they're heavily unionized. There are exceptions, such as the banks, but transportation and communications are heavily unionized. Great jurisprudence has developed dealing with these issues. They're labour issues. We have extensive labour-related legislation: the Canadian Human Rights Act, the Employment Equity Act, the Canada Labour Code, parts I, II and III. If we're going to have this legislation that touches on these other areas—you talked about sexual harassment and grievances, and what not—it should be done as separate legislation, taking into account the existence of legislation that's there now and the jurisprudence that has been developed.

We think this legislation deals strictly with what it is purported to be initially. That is, it deals with the electronic transfer of information. Basically, certainly the minister's emphasis was certainly unrelated to commercial activities and protecting people when they use electronic information. The example I gave was buying things on the Internet. We think that's a totally different issue from the question of privacy and protection of employee information.

The Chair: Thank you very much, Mr. Brazier and Mr. Dubé.

Mr. Lastewka, please.

Mr. Walt Lastewka (St. Catharines, Lib.): I have a couple of questions. I have a short one first, and then I want to emphasise subclause 9(3), which you commented on.

CBC is not covered by the federal Privacy Act but will be covered by Bill C-54. Would you rather see FETCO members covered by the federal Privacy Act?

Mr. Don Brazier: I was unaware of that. I assumed the CBC was covered by the federal Privacy Act. But our position is that because legislation such as the Canada Labour Code, which is the one that we would see as being the most relevant to this in terms of employee information... Since that covers federal crown corporations such as the CBC and Canada Post, we think it is more appropriate that they be covered by this legislation, rather than the public service legislation. We think it makes more sense to have them covered by the private sector legislation since they're covered by the private sector labour relations legislation, the Canada Labour Code.

Mr. Walt Lastewka: On your previous comments on clauses 23, 25 and 27, which Ms. Jennings also covered, I tend to agree with Ms. Jennings. I think we need to have more discussion if you don't agree.

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But I want to spend some time on subclause 9(3). You gave the example on dispute resolution, you explained this takes away from your process on having to disclose, but I'm not sure what your real problem is. Perhaps you could be specific on the problem you have with Bill C-54 and the Canada Labour Code. Where is there a conflict?

Mr. Don Brazier: There are a few areas. First of all, as I mentioned, in the Privacy Act there is a provision that doesn't exist in Bill C-54, and it has been subject to litigation, as David spoke about. That is the issue of non-disclosure when an investigation is taking place. That doesn't exist in Bill C-54.

Presumably a sexual harassment complaint would be an investigation, although the wording of the Privacy Act talks about formal investigations. An investigation into an incident that might result in discipline would also be an investigation. There are other examples of investigations I could give in relation to what I will call day-to-day employee relations.

For example, when an employee comes in and says “I was sexually harassed”, the normal practice is to get the facts and information with respect to that, and make a determination as to whether or not it should go forward. It might result in a disciplinary investigation, resulting in discipline of the employee. Until that decision is taken to proceed, everything is collected confidentially. Our concern is that if the alleged harasser can come in at any point and request this information, it will discourage people from making such harassment complaints, or discourage people from providing information to the company because we can't provide confidentiality. That's a major concern we have. Certainly picking up the provisions that are in the Privacy Act would be helpful.

The other thing is it talks about a formal dispute resolution process. That is subject to interpretation, but we don't believe something like a sexual harassment process, which we are required to have both under the Human Rights Act and part III of the Labour Code, is a dispute resolution process, because there's no mechanism to resolve the dispute. If the complainant isn't satisfied, they have to file under the Canadian Human Rights Act.

The only formal dispute resolution process we can think of is a grievance procedure, whereby you have arbitration. That's clearly a dispute resolution process. We think it's far too narrow to cover. If this is intended to cover normal investigations that take place because of incidents that occur, such as harassment or something else, we think this is a far too narrow definition of this. Secondly, as David and I indicated, we don't have protections related to investigations as they do in the Privacy Act.

The Chair: Mr. Lastewka.

Mr. Walt Lastewka: I will have to ask for some assistance here, because I want to see where the conflict is.

Mr. David Olsen: Perhaps I could try to assist.

The Chair: Mr. Olsen.

Mr. David Olsen: Paragraph 22(1)(b) of the Privacy Act states in essence that an employer may refuse to disclose information if it was gathered in the course of a lawful investigation. Let's just stop there. So under the Privacy Act, if someone complains to you about sexual harassment in the workplace and you start an investigation, confidential documents and witness statements that come out of that process are protected.

The privacy commission says, however, that once your investigation is concluded, if there is a request you must turn over that documentation, even though you may have gone beyond the investigation stage and the complainant has gone to the Human Rights Commission, or you discipline the harasser and you're before a grievance arbitrator about whether it was justified or not. The privacy commission says once your investigation is complete you must turn over those documents.

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Our perspective on that is that it's a little unfair to employers because it will discourage people from coming forward. Ultimately there are rules under both the Human Rights Act and the collective agreement for grievance arbitrators that deal with even-handed disclosure of documents. If one side has to disclose, the other side has to disclose and it will all come out at the hearing. So that's under the Privacy Act, and we've been in disputes with the privacy commissioner over when we have to disclose.

Under Bill C-54, it appears documents that may be produced during the investigation stage are not protected, because paragraph 9(3)(e) only talks about protecting information that was generated in the course of a formal dispute resolution process. So it seems to pick up the period after the investigation. If it's before a grievance arbitrator or before the Human Rights Tribunal, the rules that are in the collective agreement about production of documents will govern. But it looks as if you would have to produce them, if you strictly read the documents, at the end of the investigation phase or during the investigation phase. I think you need both parts. You need to protect during both the investigation stage and the formal dispute resolution stage.

Does that clarify it, sir?

Mr. Walt Lastewka: Yes, I understand that.

Mr. David Olsen: Thank you.

Mr. Walt Lastewka: Thank you, Madam Chair.

The Chair: Thank you very much, Mr. Lastewka.

Mr. Jones, do you have any questions?

Mr. Jim Jones (Markham, PC): Yes, I have one question.

Did you review your concerns—you're with Canada Post and Air Canada—with the corporations to see if they have the same concerns?

Mr. Don Brazier: We represent the corporations here.

Mr. Jim Jones: I thought you represented the unions.

Mr. Don Brazier: Oh no, we represent the employers. The only thing I can say—and this is more of an ad hoc thing—is that I'm in negotiations now with one of our major union groups. I work with CP Rail, which represents the operating employees, the engineers and conductors. On disclosure to the union, there are issues of that nature at the bargaining table; we're dealing with them right now. Our unions are aware we have legislation coming down the pike that possibly, based on our interpretation, could result in some concerns.

I must admit that in flipping through the Internet looking at your proceedings, I don't think I've noticed a union appeal before the committee, although I think the last day I've seen proceedings for was probably February 8 or something. Perhaps there's been something subsequent to that time.

We have also discussed it with the CLC—the CLC has a copy of our brief—because we think there are issues in here of mutual concern. That's the extent of my personal discussions with unions. I can't speak for other employers who might have talked to their unions.

Ms. Leslie-Anne Lewis (Manager, Employment Legislation, Canadian National; Federally Regulated Employers—Transportation and Communications): CN hasn't entered into specific discussions with the union on this yet either.

The Chair: I don't have any other speakers on my list right now. I want to thank our witnesses for being with us today. This was a very informative discussion. We appreciate it. We appreciate your coming out in the snow to meet with us. We definitely will review not only your submission but the discussions that took place today in our deliberations. Thank you very much.

The meeting will now adjourn into the steering committee meeting. Steering committee members can stay. I know they're all very excited.