UTE's Response to CRA

September 19, 2011

September 19, 2011

The Honourable Gail Shea
Minister
Canada Revenue Agency
555 MacKenzie Avenue
Ottawa, Ontario K1A 0L5

Linda Lizotte-MacPherson
Commissioner
Canada Revenue Agency
555 MacKenzie Avenue
Ottawa, Ontario K1A 0L5

Dear Madam Minister and Madam Commissioner,

On behalf of the Union of Taxation Employees (UTE), I take this opportunity to respond to the letter dated August 16, 2011, written by Mr. Dan Kelly, Senior Vice-President, Legislative Affairs, Canadian Federation of Independent Business (CFIB) and to your reply to said letter dated August 22, 2011.

In response to disparaging public remarks made by Ms. Catherine Swift, President of the CFIB, the UTE has requested that our 26,000 members boycott businesses who are members of her organization.

In the aforementioned letter, Mr. Kelly wrote in part, “CFIB respects the right to free speech – including for members of the public service.” Further, Mr. Kelly writes, “A small business owner may understandably feel that a CRA employee who is protesting or boycotting their business after 5 pm may allow their personal views – however subtly – to creep into their audit work during office hours.”

Madam Minister and Madam Commissioner, I am confident you are aware of the decision Gendron v. Treasury Board (Department of Canadian Heritage), 2006 PSLRB 27, which relies on the Supreme Court of Canada decisions Fraser v.  P.S.S.R.B., 1985 CanLII 14 (S.C.C.), R. v. Oakes, [1986] 1 S.C.R. 103 and Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, delineating the freedom of expression for public servants and others as guaranteed by Section 2(b) of the Canadian Charter of Rights and Freedoms.

In the decision of Fraser and as mentioned in the decision of Gendron, The Right Honourable Mr. Chief Justice Robert George Brian Dickson “recognized the right of public servants to express themselves, to a certain extent, on issues of public interest.” Although the freedom of expression is not absolute, the decision of Osborne limits “This freedom...in light of other important competing values: a public servant's duty to ensure that the public service, to which that person owes a duty of loyalty, is impartial and effective...”

In the decision of Oakes, the Supreme Court outlined a test with two criteria, “first, the government objective must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" and second, the means chosen must be reasonable and demonstrably justifiable in a free and democratic society.” The second part of the analysis involves three dimensions, “that the measure adopted is rationally connected to the objective (rational connection); that the measure impair as little as possible the right or freedom in question (minimal impairment); and that there be proportionality between the effects of the measure and the objective [proportionality]”

In the decision of Fraser, the Supreme Court further wrote, “that the existence of an apparent conflict of interest must be determined by an informed person in an objective and rational manner.” In other words, “Would an informed person, viewing the matter realistically and practically and having thought the matter through, think it more likely than not that the public servant, whether consciously or unconsciously, will be influenced in the performance of his official duties by considerations having to do with his private interests?”

To determine if a conflict of interest exists, a number of factors must be utilized, “...the nature and field of the activities concerned (mandate and objectives), the visibility and role of the public servant (duties and responsibilities) and, lastly, the level of that person's power and influence.”

Consequently and based on the above analyses from the Supreme Court and the Public Service Labour Relations Board, the UTE is confident that CRA employees will not be impeded by their employer when choosing to exercise their right to the freedom of expression. In addition, it is the UTE’s opinion that the above right respects the CRA’s Code of Ethics and Conduct and therefore, there is no need for the CFIB and the CRA to be concerned about our members’ personal views “...creep[ing] into their audit work during office hours.” or that “...the union’s campaign against CFIB members may affect their audits or other dealings with CRA.”

As noted on numerous occasions by the Workplace Relations and Compensation Directorate, our members are frequently reminded of their obligations and responsibilities under the Code. Consequently, it is the UTE’s strong opinion that there is no need for the CRA to “...issue a communication to all employees to remind them of their obligations under the Code of Ethics and Conduct, as well as the appropriate use of social networks.”

It is hypocritical of the CFIB to mention that it respects the right to freedom of expression while requesting that “...you review your Conflict of Interest and other employee guidelines to determine if civil servants acting on their unions’ advice will be breaking any of their commitments...” It is also unfortunate to know that the Facebook page referenced in Mr. Kelly’s letter was recently deleted from the social network despite the fact that according to his organization, “...this group [had] attracted only 10 members.”

To clarify Mr. Kelly’s comment, the UTE is not requesting that our members approach a small or medium business to voice their concerns about its membership in the CFIB while performing their work-related duties. Instead, the UTE is requesting that as private individuals and without disclosing their employee-employer relationship, our members refrain from purchasing products from businesses who are members of the CFIB. If so desired, our members can also express their discontent about the CFIB President’s public remarks related to their union and their pension.

Although the UTE is making the opinions of the CFIB known to our members, it is unreasonable for the latter to believe that our campaign will “...derail some of the positive developments of the past few years.” allegedly made between the parties or that small and medium business owners will be “...targeted by government staff.” Furthermore, it is unreasonable for the CFIB to believe that the UTE and its membership will not vehemently defend its position and existence.

Relatedly, while we recognize that the CRA must be sensitive to legitimate concerns raised by taxpayers and taxpayer groups, we also respectfully submit that the CRA must also be sensitive to unwarranted and unsupported criticisms of your employees and our members by these same groups. As a result, we are extremely disappointed with the response to the CFIB and suggest that a strong response should have been issued defending the integrity of all CRA employees.

It should also be noted that our campaign began almost one year ago and until the month of August, 2011, the CFIB failed to forward any concerns to your attention. The UTE questions why the CFIB is now concerned about our members’ personal views.

Madam Minister and Madam Commissioner, the UTE trusts that your faith in your employees will not be spoiled by Mr. Kelly’s concerns. We also trust that the CRA will not yield to the CFIB’s request to review your internal Code and our members’ obligations and responsibilities deriving thereof. Doing so will in our opinion, demonstrate a lack of autonomy on the part of the CRA.

The CRA’s current administrative structure is more than sufficient to counter-argue Mr. Kelly’s apprehensions.

The UTE welcomes the opportunity to clarify any of the above via an in-person meeting.

Sincerely,

signature Robert Campbell

Mr. Robert Campbell
National President
Union of Taxation Employees

cc.  UTE Executive Council
  Mr. Dan Kelly, Senior Vice-President, Legislative Affairs