Bill C-377: New Information on “The Bill That Nobody Wants”

Two researchers have uncovered some new and very troubling information about Bill C-377, the proposed Canadian law that would impose exceptionally rigorous financial reporting requirements on unions. “The bill that nobody wants”, as it was called in the researchers’ lecture last week, is now the center of an even more appalling story of misinformation and deception – a story that should concern not only anyone who cares about Canadian unions and workers, but also anyone who cares about the integrity of Canada’s democratic legislative process.

The first version of this bill was introduced in the House of Commons in 2011 as Bill C-317, and the Speaker of the House dismissed it as being out of order. The bill was then re-introduced in the House as Bill C-377 – a private member’s bill sponsored by Member of Parliament Russ Hiebert. It was approved in the House of Commons and sent to the Senate. The Senate refused to vote on it, and returned a heavily amended version of the bill to the House in mid-2013. The House returned the original, unamended bill to the Senate, where it is currently being debated again. It’s extremely unusual for private members’ bills to make it this far in the federal legislative process, or to be on Parliament’s agenda for so long. So what’s really going on here?

Many of the proponents of Bill C-377, in both the House of Commons and the Senate, have stated that 83 per cent of Canadians want financial transparency for both public and private sector unions. But Andrew Stevens and Sean Tucker, two professors in the Faculty of Business Administration at the University of Regina, have assembled information – from interviews, responses to Freedom of Information requests, and online documentation – that indicates the 83% number is questionable, and that the polls that produced that number are even more questionable. (You can see the Powerpoint of their lecture about the bill, and listen to the audio of the lecture, here.)

Stevens and Tucker have been investigating Bill C-377 since 2011, but before I describe what happened then, I’ll quickly review some of their findings about the progress of the bill before that time. The primary organizations to publicly express support for Bill C-377 were five notoriously anti-union associations: Merit Canada (a group of non-union construction organizations), the Canadian Federation of Independent Business, the Independent Contractors and Businesses Association of British Columbia, and the Canadian LabourWatch Association (also known as LabourWatch). In contrast, the bill was opposed by the Canadian Labour Congress and its provincial affiliates; the Canadian Bar Association (the national professional association for Canadian lawyers); Canada’s federal privacy commissioner; some provincial governments; and a number of pension fund managers. And, according to Stevens and Tucker’s sources, two federal cabinet ministers also expressed negative opinions about the bill.

So although Bill C-377’s proponents claimed that “83% of Canadians” favoured the proposed legislation, there were very serious concerns about the reasons for and effects of the bill – e.g. the privacy implications of forcing unions to publish contact information for all participants in their financial transactions worth $5,000 or more. Concerns were expressed by a wide range of organizations and individuals, including ministers in Prime Minister Harper’s cabinet. Yet the bill was passed in the House of Commons – with an unusually high number of Members of Parliament present for the vote, compared to the number that usually show up for votes on private members’ bills – and was sent to the Senate for further debate.

In 2012, Stevens and Tucker discovered that “State of the Unions”, a 2011 poll conducted by Nanos Research for LabourWatch – and the source of the 83% figure – contained a question with a biased and misleading introduction that could have influenced the direction of the responses to that question. They also found that the results of another question were suppressed. The original report on the poll stated that “Canadians were divided on whether the Canadian public or just union members/unionized employees should have access to unions’ financial information”. This statement not only seemed to contradict the claim of 83% of Canadians being in favour of such disclosure, but also had no relation to any of the survey results mentioned in the report.

According to Tucker, in October 2011 the version of the report on the poll that was posted on Nanos Research’s website was amended to include an appendix. The appendix stated that a question in the survey “was considered, in retrospect, to be inadequate from a research perspective” because the potential responses to the question were not mutually exclusive, and because one of the words in the question (“access”) could be interpreted in different ways by respondents. Thus, the appendix stated, the results of the question had been removed from the survey outcomes.

The Canadian Labour Congress (CLC) used those findings as the basis for a complaint about the poll’s methodology to the Marketing Research and Intelligence Association (MRIA), an industry group for the Canadian polling industry. Among other services to the industry, MRIA maintains a code of ethical conduct for its members. MRIA convened a panel to hear the complaint, and announced in September 2013 that the reporting of the results of two questions “allowed potentially biased information to be reported by LabourWatch”; it also stated that MRIA’s ethical code had not been violated.

Senator Hugh Segal's comments on Bill C-377, during its 2013 debate in Canada's Senate.

Senator Hugh Segal’s comments on Bill C-377, during its 2013 debate in Canada’s Senate.

But Tucker and Stevens were informed by a source that the MRIA panel actually ruled that the code had been violated. The panel also set four recommendations that Nanos Research would have to fulfill to avoid being censured by MRIA.

  • Nanos should inform LabourWatch, and copy the CLC and MRIA, that Question 20 [the question with the misleading preamble] must only be reported within the complete context of the question including the preamble.
  • The complete preamble for Question 20 must be used whenever Nanos refers to the question or the figure of 83% of respondents answering “yes” to the question, and Nanos should acknowledge to the CLC in writing the importance of including the preamble when talking about the results of the question.
  • Nanos should also inform LabourWatch that the full questionnaire, including Question 18 [the question whose results were removed], needs to replace the version of the questionnaire that was posted on the LabourWatch website.
  • Nanos should also seek permission from LabourWatch to release the results of Question 18. These results should be communicated to the CLC by letter (with a copy to MRIA).

The difficulty for Nanos in carrying out these recommendations, according to Stevens and Tucker’s sources, was that LabourWatch owns the data and the results of the poll. And to say that LabourWatch responded with disdain to these recommendations would be an understatement. Stevens and Tucker’s sources stated that LabourWatch refused to comply with Nanos’ requests, and this can be verified by looking at the two versions of the 2011 questionnaire that are available online. One is posted on Nanos Research’s website, and one is posted on LabourWatch’s website. Specifically, the Nanos Research version includes the question related to the suppressed result (question 18 on page 35 of the report) while LabourWatch’s version omits that question (page 5 of their version of the questionnaire).

And, as I’ve written before, the poll also produced results – such as a majority of respondents agreeing that unions had positive workplace effects such as job security for employees, and a majority of unionized respondents feeling that their union dues were well spent –  that were not mentioned in LabourWatch’s press release about the poll.

Then, while MRIA was still investigating the complaints about the 2011 poll, LabourWatch contracted the polling organization Leger to conduct a 2013 version of the “State of the Unions” poll. The 2013 poll included two versions of the 2011 poll question with the controversial preamble – one version with the preamble, and one without. Equal numbers of respondents were given one of the two versions of the question, and the reported responses were almost identical. 83% of the respondents who heard the question with the preamble said they “completely” or “somewhat” supported unions being required to “publicly disclose detailed financial information on a regular basis”. 85% of respondents who heard the question without the preamble gave the same responses.

The wording of Leger’s report on the 2013 poll, as posted in the LabourWatch website, notes that the preamble had no effects on the responses to the question. However, Richard Johnston of the University of British Columbia – who holds the Canada Research Chair in Public Opinion, Elections, and Representation – told Tucker and Stevens that it isn’t too much of a stretch to get anyone to endorse financial openness for any kind of organization, and that a question asking about financial openness for corporations would likely also get support from a majority of respondents.

Tucker and Stevens have also uncovered some information about Nanos Research that is worth mentioning in the context of Bill C-377. In 2012, Nik Nanos, the head of the company that conducted the 2011 LabourWatch poll, participated in a panel discussion at the 7th International Open Shop conference in Ottawa. The conference was sponsored by Merit Canada; Merit Canada’s Alberta affiliate was one of the organizations that co-founded LabourWatch in 2000. According to media coverage of the panel discussion, Nanos stated during the discussion that “unions have a significant problem in terms of transparency”; that getting support for accountability and transparency was a “no-brainer”; and that the poll results were a “slam dunk” for the cause of union disclosure. Two of Tucker and Stevens’ interviewees expressed the opinion that these comments were not neutral, and could be interpreted as advocacy for Bill C-377. Nanos’ participation in the Open Shop conference does not appear on his list of speaking engagements on the Nanos Research website.

Despite the controversy over the results of the 2011 poll, the results of both the 2011 and 2013 polls continue to be used to support Bill C-377. In September of last year, when the bill was again debated in the Senate, Senator Bob Runciman referenced the poll results in alleging that “union bosses…fiercely want to hide their spending”. Kevin Sorensen, the Minister of State for Finance, took things even further by stating in the House of Commons that the provisions of the bill were something that all Canadians are asking for” [emphasis mine], which is an assertion that even the flawed poll results don’t come remotely close to supporting. And in November, Russ Hiebert, the MP who sponsored Bill C-377, issued a press release saying that the 2013 poll results showed “a broad public consensus” for the bill’s “financial transparency” proposals. (Hiebert also called LabourWatch a “non-partisan” organization, which any quick review of its activities and information will show is clearly untrue.) To this day, the Bill C-377 FAQ on Hiebert’s website repeats the 83% claim without including the contextual information that the MRIA requested.

It’s embarrassing that Bill C-377 is still on the agenda of Canada’s Parliament after nearly three years of criticism of and resistance against it. The only serious support for the bill is from a few organizations that clearly have an anti-union agenda, and which have not provided any practical reasons why the bill is necessary, or what problem it is addressing. And, hypocritically, several of these organizations are anything but transparent about their own financial affairs.

Stevens and Tucker describe the progress of the bill as a case of “ideology over public policy”. With such limited support for the bill – and with much of that support based on the results of spurious research – it’s deeply troubling that so many Canadian Members of Parliament did not, or would not, look more critically at Bill C-377 and its implications before voting on it. (Here’s the list of the MPs that voted for and against the bill.) And for all the criticism that gets directed at Canada’s Senate, the debate over Bill C-377 is one instance where the Senate responsibly fulfilled its role as the “chamber of sober second thought” – by recognizing the numerous flaws of this bill, and refusing to pass it in the form in which it was presented.

Perhaps the information that Stevens and Tucker have uncovered will be enough to finally stop the bill from going any further. Not only is Bill C-377 a bad piece of legislation, but the process by which it has been pushed through Parliament reflects very badly on the Conservative government’s respect for honest, factual debate and for the democratic process. “The bill that nobody wants” is a bill that should never be passed.

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