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Parliamentary Employment and Staff Relations Act. Bill to Amend—Second Reading—Debate Adjourned

Hon. Serge Joyal moved second reading of Bill S-219, to amend the Parliamentary Employment and Staff Relations Act.—(Honourable Senator Joyal, P.C.)

He said: Honourable senators, Bill S-219 appears technical, but it is closely related to another item on the Order Paper and Notice Paper at page 17: Motion No. 104, introduced by the Honourable Senator Andreychuk. In her motion, she proposes that we refer to the Standing Committee on Rules, Procedures and the Rights of Parliament the issue of developing a systematic process for the application of the Charter of Rights and Freedoms to the Senate of Canada.

I invite honourable senators to pay attention to the situation in which they now find themselves in the Senate, given the decision of and the essential question raised by the Supreme Court of Canada in June 2005. Chief Justice Beverley McLachlin of the Supreme Court of Canada asked the parties in the Vaid case:

Is the Canadian Human Rights Act constitutionally inapplicable as a consequence of parliamentary privilege to the House of Commons and its members with respect to parliamentary employment matters?

In simple terms the question is: Are the employees of the Senate, the House of Commons and the Parliament of Canada generally protected by the Canadian Human Rights Act? It is a simple question to put, but the answer is complex. Unable to imagine the contrary, any one of us would think that an employee of the Senate or of Parliament would be protected in his or her human rights and freedoms. How could it be that Parliament would discriminate, perhaps unintentionally, against a Canadian with no course to seek redress?

Senator Andreychuk asked: Does the Charter of Rights and Freedoms apply to the employees of Parliament? We praise ourselves that Canada is blessed by the Charter of Rights and Freedoms, but the clear issue is that no employee of Parliament can use the Charter of Rights and Freedoms in seeking redress before the courts. Honourable senators might be surprised by the decision in the Vaid case, but that was the conclusion of the Supreme Court of Canada. Many honourable senators will recall that the Senate Rules Committee studied this issue over at least eight meetings. Mr. Vaid was the former driver of a speaker of the House of Commons. He claimed one day that he was dismissed on the basis of discrimination. Mr. Vaid happens to be a visible minority. He sought redress at the Canadian Human Right Tribunal, but the House of Commons lawyers argued that Mr. Vaid could not seek redress at the Canadian Human Rights Tribunal because he was an employee of Parliament and, being an employee of Parliament, his position was privileged.

(2050)

What does that mean? It means that Mr. Vaid could not go to a court of law to get an order to compel Parliament to put into place a grievance mechanism or compensation that would be adapted to the solution to his case.

The lawyers for the House of Commons argued that all 5,000 employees of Parliament are in that situation. Who are the 5,000 employees of Parliament? I have a list of all of them and I will read that very quickly: The Senate has 605 employees; the Library 400; the House of Commons, 2, 033; the MPs have 1,927, for a total of 4,965. Those statistics do not include casual or contract employees of the Senate.

Therefore, there are 5,000 employees of Parliament. According to the interpretation that the lawyers of the House of Commons put forward at the Supreme Court, none of them are protected directly by the Canadian Human Rights Act.

This seems impossible, in a system with a rule of law, in a democracy that is ruled or inspired by the values of the Canadian Charter of Rights and Freedoms, that such a situation cannot be addressed properly.

The court, in its decision in June 2005, suggested and concluded that an employee such as Mr. Vaid is protected by the Canadian Human Rights Act contrary to what the lawyers of the House of Commons submitted, but that in order to seek grievance or redress, that person must address himself under the Parliamentary Employment and Staff Relations Act, PESRA.

In other words, if that employee feels that he or she has a grievance that involves the Canadian Human Rights Act, that employee cannot go before the Canadian Human Rights Tribunal but must seek redress under the Parliamentary Employment and Staff Relations Act.

The problem with PESRA, which was adopted in 1985, is that it does not provide for protection in terms of its grievance procedure which is equivalent to the Canadian Human Rights Tribunal. It is as if I were to say, "You are protected by the law, but you will not go before a court of justice that will afford you the same kind of protection as if you were to go before a normal court of justice."

For instance, the decisions of the Canadian Human Rights Tribunal are reviewable by a court, but decisions that are rendered under the Parliamentary Employment and Staff Relations Act are not reviewable by the court. Moreover, the Canadian Human Rights Tribunal can order compensation and can reinstate with the proper mechanism of redress for which the Parliamentary Employment and Staff Relations Act does not provide.

The Supreme Court concluded that if an employee wants to seek redress under PESRA, that employee is less protected than an employee of the Public Service Commission.

There is another act called the Public Service Labour Relations Act that governs public service employees. That act is fairly recent. Honourable senators will remember that we adopted it in 2003. That act is modern in its mechanism to protect a public service employee who seeks redress under a human rights grievance. In other words, that new act, the Public Service Labour Relations Act, calls upon the Canadian Human Rights Commission to appear and to take a stand in support of the employees who seek redress or who have a grievance to file. In our other system, the Parliamentary Employment Staff Relations Act, the Canadian Human Rights Commission has no standing, no right to intervene and no possibility to support the claims or grievances of the employees.

The simple conclusion is that if one is an employee of the public service, generally, one is better protected than if one is an employee of the Parliament of Canada. That seems to be quite strange to Parliament, and especially the Senate, where we are so sensitive to any issue related to human rights and minority issues.

In any bill we always look for the impact of that bill on minorities. The situation in which we find ourselves, however, is that our employees do not have the same protection as the public service employees under the new act that we adopted in 2003. That is what the Supreme Court concluded.

There is another situation that is even more complex. The employees of Parliament are called "privileged." The three clerks we have tonight at the table and the Black Rod who we have at the end of this chamber all have privileged positions. In other words, they evade any review from the court. If they have a complaint to make, according to human rights and freedoms, there is absolutely nothing they can do to go to court, to seek redress under the Parliamentary Employment and Staff Relations Act, because they are not covered by that act, nor are they covered by the Public Service Labour Relations Act.

In other words, we have employees in Parliament who fall into a black hole. There is no regime to cover their rights and freedoms if they are not covered by the Parliamentary Employment and Staff Relations Act or if they are privileged.

The bill I am proposing and the motion that Senator Andreychuk is proposing will address that situation essentially. In other words, it will give to the employees of Parliament who are covered by the Parliamentary Employment and Staff Relations Act exactly the same protection that any employee of the Public Service enjoys under the new act that we adopted in 2003. The motion of Senator Andreychuk will address the condition of employees who happen not to be covered by any of those acts for which the status of protection of human rights has not been addressed and where there is no formal mechanism for those employees to seek redress when their human rights or freedoms are questioned in the object of a grievance.

Honourable senators, the terms of reference that the committee will receive, either to study the bill I am proposing or the motion that Senator Andreychuk will have an opportunity to move and speak on — and I am certainly happy to support the motion of Senator Andreychuk and to speak in support of it — is an issue that should be addressed as a whole.

Honourable senators should review those employees who are now compelled to seek redress in a system where they do not have the same protection as in the Public Service and the statutes of employees of Parliament who are not covered at all where their "Charter rights" are at stake. We should provide for these employees in the Rules of the Senate, as the other place should provide in its own rulings, because the decision of the Supreme Court of Canada applies in the House of Commons and in the Senate, whereby the proper recommendation could be made for an amendment of the Rules of the Senate to address the issue raised by the Honourable Senator Andreychuk.

Honourable senators, I know this is a complex issue and I know it is late, but in looking at the Order Paper today, the bill I was proposing was at the eleventh day and I seek your concurrence so that we can continue the discussion and deliberation of that bill.

On motion of Senator Comeau, debate adjourned.