XPost: can.politics, bc.politics, ab.politics   
   XPost: ont.politics   
   From: ConsRCons@govt.cda   
      
   Monday, Jan. 20, 2014 - The HillTimes   
      
     A life-long confidentiality agreement that all political staff working   
   for MPs on the Hill and in riding offices across the country are being   
   asked to sign is a “highly unusual” and an “appallingly poor contract”   
   that would be “unenforceable” in a court of law, says University of   
   Ottawa law professor Amir Attaran.   
      
   “It’s an appallingly poor contract. Let me be quite blunt about   
   this—this is the sort of nightmarishly done contract that is the bread   
   and butter of first-year law student exams, it’s that bad. It’s really   
   poorly done,” said Prof. Attaran in an interview with The Hill Times.   
      
   “A contract is only as good as it is enforceable. If a contract isn’t   
   enforceable, what use is it? And I cannot imagine in my wildest dreams   
   that if this made it to court the court would enforce, for example, a   
   post-employment obligation to check with the employer for any other work   
   for the rest of one’s life. There’s no way, I mean that’s fanciful.”   
      
   At a March 4, 2013, in-camera meeting of the House of Commons Board of   
   Internal Economy (BOIE), the seven-member all-party Board approved   
   changes to “modernize” employment policies. Since then, a new “conflict   
   of interest, loyalty and confidentiality agreement” has been included as   
   a mandatory part of the employment forms staff are required to fill out,   
   sign and submit to the House administration in order to change   
   employment status.   
      
   Employment forms are filed with House administration when someone is   
   hired, promoted or given a raise and are also signed by the Member of   
   Parliament. Previously, confidentiality agreements existed on an ad hoc   
   basis for each MP’s office.   
      
   All MP staff are being asked to sign the agreement, including staff   
   working for party officers (like the House leader or whip), as well as   
   those working in the party research bureaus and ridings offices.   
   Ministerial staffers are not required to sign the agreement as they are   
   considered public office holders and are therefore subject to different   
   provisions (like the Conflict of Interest Act, for example).   
      
   The BOIE, chaired by House Speaker Andrew Scheer (Regina-Qu’Appelle,   
   Sask.), acts as the governing body of the House of Commons, and is   
   responsible for approving House budgets and the policies and bylaws that   
   govern their use of office budgets. Each recognized party in the House   
   of Commons (those with at least 12 sitting MPs) has a representative on   
   the Board, which reflects party standings in the Chamber. Independent   
   MPs turn to the Speaker as their point of contact.   
      
   Despite being introduced and put into action last spring, word of the   
   new lifetime gag order for Hill staff didn’t reach media until last   
   month, after a disgruntled staffer using the pseudonym Nanker Phelge   
   sent out a copy of the agreement. In response to emailed questions,   
   Nanker Phelge told The Hill Times that he or she and others have   
   foregone salary raise in order to refuse signing the document.   
      
   The agreement, which survives “termination of employment,” states that   
   staff “will avoid any activity” that may reflect unfavourably on an MP   
   or the House of Commons. If the agreement is breached, it states that in   
   addition to “any other legal or administrative recourse available to my   
   employer or the House of Commons” any termination pay will be returned.   
      
   It’s unclear just where the text of the agreement came from, but it’s   
   been in use since at least 2011 as a template confidentiality agreement   
   available for use by MPs on Parliament’s internal web service, IntraParl.   
      
   NDP staffers union head Anthony Salloum, a lobby officer to NDP Whip   
   Nycole Turmel (Hull-Aylmer, Que.), said he wasn’t aware of the new   
   confidentiality agreement until last fall, when a scheduled raise for   
   hundreds of NDP staffers kicked in. Suddenly, emails started pouring in   
   as hundreds of NDP staffers were faced with having to sign the   
   agreement, said Mr. Salloum.   
      
   Mr. Salloum said he’s heard from “several dozens” of staffers who have   
   foregone a raise in order to refuse signing the document, but also said   
   he knows that the majority of the roughly 675 NDP staffers on the Hill   
   have signed the agreement. The NDP has about 500 staff members divided   
   between the Hill and constituency offices of NDP MPs, as well as   
   approximately 125 to 175 staffers in the OLO (which is a combination of   
   the NDP research bureau and leader’s office staff).   
      
   “For many of us now, we’re just a little anxious, we’re waiting to see   
   how this unfolds,” said Mr. Salloum.   
      
   ( Page 2 of 3)   
      
   In the case of a current employee, the penalty for breaching the   
   agreement seems clear-cut: they would be fired. But current employees   
   would likely be fired for loose lips even without such an agreement in   
   place, and the consequences of this broadly-worded gag order for former   
   employees isn’t so clear.   
      
   Prof. Attaran said with no end date—something he called “highly   
   unusual”—he doesn’t think there’s “a court in the country” that   
   would   
   enforce the agreement, and he questioned how a court would even remedy a   
   situation where an employee in breach of it was taken to court.   
      
   “What precisely would they lose by a breach of confidence? How could   
   they demonstrate the pecuniary, quantifiable monetary damages? If they   
   simply say, you embarrassed us, I don’t really see that attracting   
   damages,” said Prof. Attaran.   
      
   But more importantly, Prof. Attaran said he can’t imagine the House of   
   Commons ever taking an employee to court for breach of the contract   
   “between now and the end of the universe.”   
      
   “It has been the consistent position of the Speaker of the House of   
   Commons that employment matters within the Commons are for the Commons   
   to deal with, and not the courts,” said Prof. Attaran.   
      
   He pointed to a 2005 Supreme Court of Canada decision involving   
   dismissed staffer Satnam Vaid, who had sought to take a discrimination   
   and harassment complaint against the House Speaker to the Canadian Human   
   Rights Tribunal. The Supreme Court ruling affirmed the Speaker’s claim   
   that management of employees was a Parliamentary privilege.   
      
   “The Speaker, obviously acting for the Commons, wanted to establish that   
   outside tribunals, or courts for that matter, do not have jurisdiction   
   over employment-related matters. Would they destroy this position by   
   suing somebody for breaching a confidentiality clause? Because if they   
      
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