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The 'status of the artist' under Canadian law.

Art lovers are familiar with the tale that the famous Dutch painter Vincent van Gogh sold only one painting in his lifetime. (1) The renowned post-impressionist's works are now counted among the world's most expensive paintings ever sold: in 1990, one of his portraits sold for $82.5 million at auction. (2) In a way, this is tragic: van Gosh never saw the world's appreciation for his contributions to our cultural heritage, and remained mostly poor and obscure during his life.

Today, the stereotype of the 'starving artist' is not a gross exaggeration of the lifestyles lived by many professional Canadian artists. Despite their contributions to the richness of Canadian culture and heritage, many live in poverty or supplement their meagre artistic income with another job. This situation is what the Federal Status of the Artist Act seeks to improve. (3) Following a UNESCO Recommendation in 1980 on the status of the artist, (4) Canada created a legislative framework for self-employed artists to bargain collectively with federal producers who engage their services. It is essentially a piece of labour legislation: under the statute, artists can unionise into artists' associations who represent their members in negotiating contracts with federal producers of artistic works to provide the artists with fair wages, benefits and other terms and conditions of employment. The artists protected by the Status of the Artist Act include not only painters, but all visual artists, performers, musicians and authors.

In this paper, I summarise the current socio-economic status of the artist and outline the legislative history of the statute. I then describe the key features of the Act and examine the two bodies that it creates, and finally engage in a critical analysis of the legislation and the policy that gave birth to it. I suggest that there is no longer a need for an independent advisory council or a tribunal, and that it would be more efficient for other existing agencies to absorb their functions. It is sensible and good policy to give self-employed artists collective bargaining rights, particularly with regard to principles underlying labour law. Ultimately, however, the Status of the Artist Act has been ineffective at improving the economic status of the Canadian artist. This is in part because the Act is limited in scope: it is constrained by federal jurisdiction, and it covers only labour relations. At a minimum, provincial action is needed to build a coherent policy for professional Canadian artists.

FACTUAL BACKGROUND

The Status of the Artist Act was enacted as an attempt to augment the socio-economic status and employment conditions of the Canadian artist. Therefore, to understand the impact of the Act, it is important to have a brief look at the working life of Canadian artists.

Artists generally have low incomes. In 2006, the Canadian census counted roughly 140,000 artists who had an average income of $22,700. (5) This low figure requires many artists to supplement their income with another job in order to survive. (6) Additionally, artists tend to have a highly fluctuating income stream, contributing to a 'feast or famine' lifestyle. (7) For example, an author may spend several years researching and writing a work, getting a large influx of income in the year when it is published. This can present a tax inequity if the author is fully taxed in the year that income is received. (8) Artists often make the expenditures necessary to produce art long before the sale of their works or receipt of payment, especially where the artists need to constantly train or rehearse to keep up their skills or where copyright royalties are in place. (9) Furthermore, as self-employed workers, most artists do not have access to social benefits that many other Canadian workers obtain through their employer, including supplemental medical insurance, retirement plans, sick leave or unemployment insurance. Lack of supplementary health coverage may be a particular concern for some artists where physical injury is an inherent risk of the job, such as dancers, stunt performers or visual artists who work with toxic materials. (10) Lastly, where artists are being paid on a commission basis for their works, they are particularly vulnerable to bankruptcy. If a publisher or art gallery goes bankrupt, the artist is unable to reclaim their work or their income. (11)

LEGISLATIVE HISTORY

The Status of the Artist Act was preceded by several extensive studies that informed the Canadian Government and public of the issues facing people who made a livelihood from their artistic talents. Although the Federal Government commissioned these reports--twelve in a single decade--Canada would take few steps to elevate the socio-economic status of the artist until the late twentieth century.

In 1951, the Royal Commission on National Development in the Arts, Letters and Sciences delivered the poetic and sometimes passionate Massey-Levesque Report, which contained the first general survey of the status of Canadian arts and a number of policy recommendations to strengthen Canadian culture. The Report was a milestone for the arts community for acknowledging for the first time that artists were unable to live by the sale of their artistic work alone. (12) The Report led to the creation of the Canadian Arts Council, which was welcomed by the arts community but did little to improve the arts as a Canadian profession. (13) More than two decades later in 1978, the Disney Report comprehensively portrayed the economic difficulties that Canadian artists struggled with; nothing came of the Report's recommendations.

In 1980, Canada made an international commitment to act on artists' issues when it signed the UNESCO Recommendation concerning the Status of the Artist. The Recommendation recognised the important contributions that artists make to culture and cultural identity, as well as the challenges that artists experience in making a living. The Recommendation encouraged signatory States to take measures to promote the professional, social and economic status of artists. (14) Following this call to action, Canada established the Federal Cultural Policy Review Committee (the Applebaum-Hebert Committee) in 1982, which concluded that artists' living conditions remained unchanged since the release of the Massey-Levesque Report and that "the income of many if not most of these artists classifies them as highly specialized working poor". (15) The Committee made 101 recommendations, but governmental action was negligible. A few years later, the Siren-Gelinas report was released by the Task Force on the Status of the Artist, which was established to investigate the living and working conditions of Canadian artists and to make suggestions to improve those conditions. The Federal Government again did not take immediate action on its recommendations.

In 1989, the Standing Committee on Communications and Culture created a Sub-Committee on the Status of the Artist whose mandate was to review existing reports on the subject and give policy advice on government involvement. This time, finally, research and consultation was followed by action. In 1991, the Minister of Communications tabled Bill C-7, an Act respecting the status of the artist and professional relations between artists and producers in Canada. Bill C-7, now the Status of the Artist Act, received Royal Assent in June 1992 and came fully into force in May 1995.

In each of the reports preceding the Status of the Artist Act, the authors' primary concern was the poverty in which Canadian artists lived despite their contributions to Canadian society. During second reading of Bill C-7, members of Parliament repeatedly lamented that many artists supplemented their lifestyle with another job in order to survive, and that in 1989 artists were found to make $15,877 per year on average, a mere $900 more than the average pensioner's income. (16) Consequently, each report made various recommendations for the Federal Government to help make art a viable, standalone means of employment, so that Canada could enjoy a richer culture and greater international stature in artistic endeavours. The suggested measures were wide-ranging. Several endorsed empowering artists' associations to act as collective bargaining agents for artists. Many reports proposed taxation schemes such as tax exemptions and income averaging mechanisms in order to stabilise fluctuating artistic income. They also suggested giving self-employed artists access to unemployment insurance and the Canada Pension Plan--employment benefits which are typically reserved for employees. Other recommendations included copyright reform to increase compensation to artists, and bankruptcy protection. Out of these recommendations, the Status of the Artist Act focuses on providing collective bargaining rights to associations of artists who negotiate contracts with federal producers.

It is unclear why the Government commissioned so many reports on the socioeconomic status of the artist when they each contained similar recommendations, or why it took so many years for legislation to be enacted. Perhaps politicians lacked the will or ability to follow through on the recommendations, or giving collective bargaining rights to independent contractors was seen as a risky and largely untested initiative. (17) Irrespective of the reasons for the delay, the Status of the Artist Act was finally enacted after a long history of study, debate and consultation.

OVERVIEW OF THE STATUS OF THE ARTIST ACT

The main thrust of the Status of the Artist Act is to recognise the economic difficulties that artists face in making a living from their occupation, and to remedy that problem by creating a means for artists to unionise into associations and negotiate scale agreements with federal producers. The hope is that artists' associations can negotiate employment terms and conditions that would be difficult for the individual artist to bargain for.

Sections 2 and 3 enunciate certain fundamental principles. Section 2 of the Act is a government proclamation of the importance of artists to the growth and expression of Canadian culture. Section 3 is a statement of Canadian policy on the professional status of the artist, which underpins the objective of the Act. It confirms the right of artists and producers to freedom of association, the right of artists' associations "to promote the professional and socio-economic interests of their members", and the right of artists to have access to 'advisory forums'. This last right is implemented by the section 4 of the Act, which creates the Canadian Council on the Status of the Artist. Its function is to advise the Government on artists in Canada and to promote their professional status and working conditions.

The core of the Act is in Part II. Section 7 recites the purpose of Part II of the Act: "to establish a framework to govern professional relations between artists and producers that guarantees their freedom of association, recognizes the importance of their respective contributions to the cultural life of Canada and ensures the protection of their rights". (18) Part II of the Act establishes the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT) and creates a scheme by which artists' associations and producers can negotiate agreements respecting terms and conditions for the provision of artists' services, called 'scale agreements' in the Act. (19) Arts organisations that are representative of a certain cultural sector are certified by CAPPRT, after which they are authorised to represent their member artists in negotiations for scale agreements with federal producers. These artists' associations are bound by a statutory duty of fair representation, which means that they must not act "in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the artists in the sector in relation to their rights" under the applicable scale agreement. (20) Producers may also form associations, which can lead to consistency in the conditions that are bargained in a particular sector, and may reduce the burden on artists' associations who have limited resources for negotiation. (21)

Once the artists' association is certified, bargaining may commence. Either an artists' association or a producer issues a notice requiring the other party to begin bargaining a scale agreement under section 31. Section 32 of the Act imposes a 'duty to bargain' on both sides. The parties must meet within twenty days after the notice was issued bargain in good faith, and make 'every reasonable effort' to conclude a scale agreement. The parties may negotiate the entire range of terms of work, including wages, safety conditions and health benefits, as well as terms specific to the artistic industry, such as the conditions under which an actor will perform in nude scenes, or health benefits for dancers. The only requirement that the Act imposes on the content of a scale agreement is that it must provide a means to settle differences either between the parties or among artists bound by the agreement, whether by arbitration or otherwise. (22) Those arbitrators settle disputes concerning the interpretation, application, administration or alleged contravention of the scale agreement. Scale agreements bind the producer and every artist in the sector engaged by the producer. (23) The parties establish the termination date of the agreement's terms in the text of the agreement, but may apply to CAPPRT to change the termination date. (24)

The Status of the Artist Act governs the behaviour of artists' associations and producers by prohibiting unfair practices. The Act regulates when artists' associations and producers may apply 'pressure tactics', defined as work stoppages enforced either by artists and artists' associations or producers in order to compel an opposite party to agree to terms or conditions of employment. (25) Breach of these rules of engagement can result in a fine as high as Ca$100,000 in the case of a producer or artists' association. Section 50 prohibits producers from punishing artists for exercising their rights under the Status of the Artist Act and from intimidating artists to prevent them from exercising their rights by refusing to engage them or terminating their engagement. Federal producers are also prohibited from negotiating work conditions with an artists' association which is not certified to represent the artists who are the subject of those negotiations. Section 51 lists the prohibitions that artists' associations must observe. They must not negotiate work conditions on behalf of artists in respect of whom they know they are not certified to represent, and they must not attempt to punish an artist because he or she was expelled or suspended for a reason other than failing to pay dues to the association or because the artist was pursuing his or her lawful rights under the Act. Further, under section 52, all parties are prohibited from intimidating or coercing individuals from becoming a member or from continuing to be a member of an artists' association. Finally, the Act institutes a maximum fine of Ca$5,000 for breaches of the Act other than for breaches related to compelled testimony before CAPPRT, the duty to bargain or the prohibitions related to producers and artists' associations. (26)

Who is a producer, and who counts as an artist? 'Producers' are defined as federal government departments, the majority of federal government agencies and Crown corporations including the Canadian Broadcasting Corporation (CBC), the National Film Board and national museums, as well as broadcasting undertakings under the jurisdiction of the Canadian Radio-television and Telecommunications Commission (CRTC). (27)

The definition of artists is less straightforward. There are three broad prerequisites for an individual to be protected by the Status of the Artist Act. First, the individual must be recognised as a professional artist by their peers. Such recognition is achieved in one of the following ways: by getting paid for the display or presentation of work before an audience and being recognised to be an artist by other artists; or by being "in the process of becoming an artist according to the practice of the artistic community"; or by being a member of an artists' association. (28) Whether an individual is a professional independent contractor is a question that can be determined by the CAPPRT. Second, the individual must fall into a category of artists. Generally speaking, an artist may be an author of an artistic work (including drama, literature or music), a performance artist, or a contributor to the artistic creation of a production (such as set or lighting design). (29) Third, the individual must be a member of an artists' association certified by CAPPRT to represent a cultural sector.

COUNCIL ON THE STATUS OF THE ARTIST (CCSA)

Section 4 of the Status of the Artist Act establishes an advisory body, the Council on the Status of the Artist (CCSA), which is composed of between seven and twelve part-time members. Its mandate was essentially to monitor and promote the professional status of artists in Canada. It sought to accomplish this by advising the Minister of Canadian Heritage on artists' concerns, networking with artists' associations to assess artists' needs and appropriate responses to those needs, conducting research on professional working conditions of the artist, and proposing measures to improve those conditions. (30)

In 1991, a provisional Council of twelve full-time professional artists was appointed, prior to Royal Assent of Bill C-7, but the Governor-in-Council never made its existence official on the enactment of the statute. It ceased to function in 1996, one year after the Act came into force. (31) During its short-lived existence, the CCSA members engaged in consultations with the arts community and prepared policy briefs. (32) On 8th March 2010, Stockwell Day, then President of the Treasury Board, hammered the nail in the coffin by eliminating the CCSA as part of a general plan to reduce Governor-in-Council appointments and improve efficiency in governance. (33)

There are a few suggested reasons for the abandonment of a key aspect of the Status of the Artist Act. In September 2002, the Ministers of Canadian Heritage and Labour conducted a statutory review of the Status of the Artist Act pursuant to section 66(1) of the Act (the '2002 Report'). The 2002 Report explains that, between the enactment of the Act in 1992 and its entry into force in 1995, a new Government had been elected who wanted to reform the organisation of and responsibility for a number of governmental committees. (34) Some perceived duplication in the mandate of the CCSA and that of other bodies. However, this does not explain why CCSA was not confirmed upon enactment of the Act.

Another reason given by the 2002 Report for the CCSA's demise is that the professional artists on the CCSA were either too busy or too inexperienced in how to deal with bureaucracy or issues of policy, and that consequently the members relied on public servants in the Department of Canadian Heritage to prepare the Council's recommendations. (35) This explanation suggests that the Minister of Communications made poor selections for CCSA's members and had a lack of political will to ensure its success, particularly given how quickly the CCSA disintegrated. It also implies a retreat from the principles of the Act in sections 2 and 3, including the Government's recognition of the importance of the artist and its commitment to improving the working conditions of the professional artist in Canada.

The disappearance of the CCSA does not necessarily indicate an absence of a body that can fulfil the CCSA's mandate and functions. The Canada Council for the Arts is an arts funding agency created in 1957 with the objective of promoting the study and enjoyment of the arts. (36) It works and co-operates with federal and provincial governments, cultural agencies and the Canadian arts community. As an arm's-length Crown corporation that has a history of shaping cultural policy, longstanding relationships with relevant stakeholders, and access to a considerable budget, the Canada Council for the Arts seems well placed to take up the mantle of the CCSA. It also already manages distribution of a significant source of income for Canadian artists: in 2010-2011, the Canada Council for the Arts awarded Ca$142 million in grants to artists and arts organisations across Canada. (37)

Another organisation capable of playing an advisory role to the Minister of Canadian Heritage on the professional and socio-economic status of the artist is the Canadian Conference of the Arts. The Canadian Conference of the Arts is a not-for-profit organisation formed in the 1940s that represents Canadian artist interests by researching cultural issues, connecting the cultural sector with other networks, providing a forum to debate cultural policy, and advocating for changes to federal policy on behalf of cultural professionals. (38) Its membership is diverse, and includes provincial governments, cities, CBC, galleries, libraries, artists' associations and cultural centres.(39) This organisation may be better suited to the job than the Canada Council for the Arts given its focus on advocacy and given that it has already "expressed a willingness to assume [CCSA's] role." (40)

In conclusion, the elimination of the CCSA is no great loss to the Canadian arts community. There are other bodies that can and do communicate with artists' associations and government, monitor and propose measures on how to improve the professional working conditions of artists, and advise the Minister of Canadian Heritage on cultural policy.

CANADIAN ARTISTS AND PRODUCERS PROFESSIONAL RELATIONS TRIBUNAL (CAPPRT)

Overview

Section 10 of the Status of the Artist Act establishes a quasi-judicial body, the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT) whose key function is to certify artists' associations to collectively bargain with federal producers. CAPPRT is empowered to define sectors of cultural activity suitable for collective bargaining, and to determine the 'representativity' of the organisation applying for certification as an artists' association for the artists they seek to represent. (41) Representativity of artists can be based on a number of factors. When an organisation applies to be certified as an artists' association, CAPPRT looks at the common interests of the artists on behalf of whom the application was made, the history of professional relations among these artists, their associations and producers concerning bargaining, and relevant geographic or linguistic criteria. (42)

For example, the Screen Composers Guild of Canada is an association that represents professional music composers and producers, a relatively narrow cross-section of Canadian artists. By contrast members of L'Union des artistes include a range of artists from actors to singers to dancers to comedians--however, the organisation specifically aims to represent all artists who work in the French language and languages other than English. (43) L'Union des artistes also has a long history of bargaining collectively on behalf of its members: it signed its first collective agreement with Radio-Canada in 1943. (44) There is often potential commonality in representation between artists' associations, but CAPPRT has said that it "has an obligation to prevent overlap between certified sectors by excluding from the definition of new sectors those it has already defined." (45)

Once CAPPRT is satisfied that an artists' association is the most representative of artists in a particular sector, it certifies the association. (46) Certification is valid for three years and is automatically renewed for additional three-year periods, unless another organisation is certified as being a better representative of the sector, or unless the certification gets revoked on the basis of discriminatory by-laws or failure to make reasonable efforts to conclude a scale agreement. (47) Since its inception, CAPPRT has certified 24 different artists' associations. (48) The last organisation to get certified, not including amendments to a pre-existing certification, was in 2003 for the Directors Guild of Canada. (49)

CAPPRT has little to do with the conclusion or interpretation of scale agreements. As previously mentioned, an arbitration scheme must be included in the scale agreement, and it is the arbitrator who interprets the agreement in the event of a dispute between the parties or between artists in an artists' association. CAPPRT's involvement in agreement interpretation is limited to determining certain questions of fact. An arbitrator must refer the following questions to CAPPRT for determination: the existence of a scale agreement, the identification of parties to an agreement, or the application of an agreement to a sector or artist. (50)

However, CAPPRT does play a supervisory role with artists' associations and the federal producers within its jurisdiction. When an association or producer engages in pressure tactics outside the permitted timeframes, CAPPRT is authorised to declare those pressure tactics unlawful, and to order their cessation. Under section 53 of the Act, CAPPRT may also hear complaints brought by producers or artists' associations for the breach of statutory duties and prohibitions, including the duty to bargain (section 31), the duty of fair representation (section 35), prohibitions relating to producers (section 50), prohibitions relating to artists' associations (section 51), and the prohibition against intimidation or coercion (section 52). Where CAPPRT determines that a party violated any of these sections, it can order cessation of the offending behaviour, compliance with a duty, compensation, and rescission of disciplinary action. (51)

Example of a CAPPRT Decision

CAPPRT has published 53 decisions since the body was first constituted in 1996, including positive certification decisions. (52) Four of these were complaints, of which two were allowed: one for breach of the federal producer's duty to bargain in good faith and one for breach of the artists' association's duty of fair representation. The other two complaints were dismissed, one because of expiry of a limitation period and the other for lack of jurisdiction.

The most recent decision on a complaint was issued on 16th February 2012 between the National Gallery of Canada (NGC) as producer and CARFAC and Le regroupement des artistes en arts visuels du Quebec (RAAV) as artists' associations. I will discuss this case because it is illustrative of CAPPRT's jurisdiction under the Act, and because it is the only complaint against a federal producer that CAPPRT has allowed.

CARFAC and RAAV submitted a complaint in April 2008 against NGC for a breach of NGC's duty to bargain in good faith pursuant to paragraph 32(a) of the Act. In January 2002 and April 2003, CARFAC and RAAV each submitted a notice to bargain to NGC. They informed NGC in September 2003 of their intent to negotiate jointly. The three parties negotiated and drafted a scale agreement between 2003 and 2007, including terms for reproduction rights and licences for reproduction rights. At the end of 2006, NGC informed CARFAC and RAAV that it was seeking legal advice. In January 2008, based on a legal opinion, NGC asserted that CARFAC and RAAV were not certified to bargain collectively on copyright issues, but only services. CARFAC and RAAV argued before CAPPRT that NGC negotiated in bad faith by "drastically changing the terms of negotiations four years" after negotiations had started. (53) NGC argued it did not negotiate in bad faith in part because the issue of minimum fees to be paid for exhibition and reproduction of works was not proper subject matter for a scale agreement, and that the Copyright Board has exclusive jurisdiction on that issue. (54)

CAPPRT decided in favour of CARFAC and RAAV on both issues. It determined that the Status of the Artist Act and the Copyright Act are complementary and that copyright matters are appropriate subject matter for a collective bargaining agreement as long as that agreementrespects the rights of copyright collectives. (55) It also found that NGC failed to bargain in good faith because NGC revised the scale agreement to not include matters related to use of artistic works and took a 'rigid stance' that it ought to have known would be unacceptable to CARFAC and RAAV, thereby preventing the parties from concluding a scale agreement. (56)

The proceedings and the decision were quasi-judicial in nature: analysis was focused on statutory interpretation and labour principles. A copyright collective was granted leave for limited intervenor status in the proceedings. In its decision, CAPPRT engaged in statutory interpretation of the Act, made reference to its previous decisions, and also considered previous decisions from the Canada Industrial Relations Board. The nature of the issue in this case appeared to require some sensitivity of issues facing artists, namely copyright as a source of artistic income, but mostly it required familiarity with intellectual property law and labour law. CAPPRT was thorough, thoughtful and well-reasoned in its analysis.

Composition

Section l0 of the Act requires that CAPPRT be composed of a Chairperson, a Vice-chairperson and fewer than two or more than four other full-time or part-time members. Members of the Tribunal are appointed by the Governor-in-Council on the recommendation of the Minister of Labour in consultation with the Minister of Canadian Heritage. (57) Currently there are three part-time members of CAPPRT. Elaine Mary Kierans is a lawyer specialising in labour relations who is both Vice-Chairperson and acting Chairperson of the Tribunal. Robert Beccarea is a lawyer specialising in arbitration and mediation, and Marie-Josee Castonguay is also a lawyer specialising in labour law, commercial law and bankruptcy and insolvency. (58)

Given the highly legal nature of the most recent decision of CAPPRT, it seems appropriate that the tribunal is composed of people with several years of experience in legal training and practice. However, it also seems curious that none of the present members appear to have experience related to Canada's cultural industry. There are sixteen previous members of CAPPRT from varying backgrounds. (59) Three were lawyers specialising in labour and employment law, four had experience with law or government and had some background in the cultural sector, and nine came from Canada's arts community. The shift in emphasis in the backgrounds of CAPPRT's members from artists to labour lawyers suggests a shift in policy in the way that the Status of the Artist Act, or at least CAPPRT, is administered.

Need for a Specialist Tribunal

The CAPPRT submits annual reports to Parliament through the Minister of Labour on its activities for the fiscal year. (60) It is clear from the case statistics and the operating costs of CAPPRT that the Federal Government should revisit the organisation of the agency and the justification for its existence, because it is not very active with respect to its statutory functions.

As previously discussed, CAPPRT is limited to certifying artists' associations, and thereafter to hearing complaints about artists' associations in their representation of their members, and the behaviour of both artists' associations and federal producers in their negotiations. In the last five years, CAPPRT has received eight new applications for certification; each was denied. Eighteen out of a total of 24 artists' associations were certified in the first four years of CAPPRT's operations. Since 1995, CAPPRT has published 53 decisions, including interim decisions and decisions to approve certification of artists' associations. CAPPRT last rendered a final decision regarding a complaint in early 2012, but rendered no final decisions in the four years prior to this. CAPPRT has only ever given final decisions on four complaints submitted to the Tribunal. In the 2010-2011 fiscal year, CAPPRT was allocated a budget of Ca$2.1 million. Operating expenditures were $376,114 and salaries and wages cost Ca$824,013, for a total spending of Ca$1.2 million. (61) CAPPRT presently has three part-time tribunal members and retains seven staff members, two of whom act as counsel to CAPPRT.

This data suggests that CAPPRT has fulfilled its primary function: identification of cultural sectors appropriate for representation, and certification of artists' associations to represent those sectors in collective bargaining agreements. There has been little demand for its adjudicative role in ensuring a fair bargaining atmosphere between producers, artists' associations, and artists. I suggest that the Federal Government would be well-advised to consider integrating CAPPRT with the Canada Industrial Relations Board (CIRB), a tribunal that adjudicates labour complaints between Federal Government and unions.

This is not a new idea. The statutory review undertaken by the Minister of Canadian Heritage and the Minister of Labour in 2002 reported that 'key informants' suggested a merger with another federal labour board or tribunal. (62) There are a number of reasons to transfer CAPPRT's jurisdiction to the CIRB. (63) A merger could result in more efficient use of resources and staff, greater coherence of decisions with labour decisions of CIRB, reduced cost and faster turnaround of cases. (64) Net savings would depend on whether CAPPRT's staff would be retained, which may be advisable as a means of smoothing the transition and keeping institutional memory. (65) As previously mentioned, CAPPRT's current tribunal members are all labour lawyers who, aside from their present focus on the arts industry, have no particular expertise or experience with labour issues in the cultural sector. CAPPRT reports to the Minister of Labour, and not the Minister of Canadian Heritage, which is indicative of a focus on labour issues as opposed to arts issues. The CIRB has already issued 79 decisions on 31 different cases in 2012, and could likely handle CAPPRT's comparatively sparse caseload. (66) Specialised training could be given to a few CIRB members who could be designated to hear artistic industry complaints. Furthermore, Elizabeth MacPherson, who was CAPPRT's first General Counsel from 1993 to 1999 and who also acted as Executive Director of CAPPRT from 1995-1999, is the Chairperson of the CIRB from January 2008 until the end of her term on 31st December 2012. (67) With extensive experience with the operations of CAPPRT, Ms MacPherson is uniquely well placed to assist with transitioning CAPPRT's functions into the folds of CIRB.

At the same time, there are reasons to keep the specialist tribunal. CAPPRT's members have the potential to be well acquainted with the issues facing the arts community and can be more sensitive to professional relations between federal producers and artists' associations. There are substantive differences between the way labour relations are managed by statute between the Status of the Artist Act and the Canada Labour Code. CAPPRT must determine which artists' association it considers is the most representative of artists in a sector, whereas CIRB must satisfy itself that a majority of the employees in a bargaining unit wish to have a trade union represent them. (68) Also, whereas CAPPRT typically decides what evidence it wants to hear in its proceedings in an investigative manner, CIRB's proceedings are more adversarial and the decision-maker does not seek out evidence on its own initiative. (69) John M. Moreau, member of CAPPRT from 2001 to 2007 and a labour arbitrator for 30 years, defended the existence of CAPPRT by explaining that differences in labour relations call for particular expertise. He said that artists often work in a variety of sectors, and are represented by a different association for each activity, and also that "a producer in one situation can be an artist in another." (70) Finally, one of the main functions of CAPPRT not found in the statute is its communications and outreach activities, which it described as 'central' to its work in the 2010-2011 year. (71) Members and senior staff attend conferences and meet with stakeholders to build awareness of CAPPRT's mandate and services--for example, that mediation services are available through the Tribunal free of charge. (72) Recently, CAPPRT's staff has been researching dramatic developments in Canadian law related to digital media, copyright and broadcasting which present a particular challenge in collective bargaining.

In conclusion, there is presently little demand for CAPPRT's statutory functions, those being certification of new artists' associations and adjudicating disputes between artists, artists' associations, and producers. Consequently, CIRB should assume CAPPRT's functions. A transfer of CAPPRT's functions to the CIRB could achieve a reduction in cost, increase in speed of service and coherence with labour decisions. However, CAPPRT's staff, should they be hired onto CIRB, can still play an important role by researching issues that are central to bargaining collective agreements and informing stakeholders of CAPPRT's services.

CRITICAL ANALYSIS OF THE STATUS OF THE ARTIST ACT

Reasons to Enact the Legislation

Notwithstanding the questionable need for the CCSA and CAPPRT, the fundamental idea of giving collective bargaining rights to artists is a good one. Firstly, artists contribute greatly to the vibrancy of Canadian culture and economy, but do not earn an income at all proportionate to their contribution. One government study found that artists had a low social status in our society. (73) Since Canadian society and the Federal Government benefits in dollars (74) and in international recognition from artists' unpaid or underpaid labour, it is fair and equitable that artists be empowered to negotiate fair conditions of service in their employment with the State conditions that are often obtained by Canadian workers through their employment contracts.

Secondly, the Act is beneficial to the extent that it can help create an environment conducive to producing artistic works and enriching Canadian cultural experience. The hope is that increased bargaining power leads to improved socio-economic status and working conditions for artists in Canada, which increases the supply of Canadian artists. This benefit is a remote one, but often spoken of among analysts and critics of cultural policy. It reflects the Applebaum-Hebert Committee's primary justification for supporting artists, which is that artistic works are 'merit goods': goods that "deserve to be fostered, in both their production and public enjoyment, irrespective of how the market may measure costs and benefits--simply because they are meritorious." (75) Supporting arts and culture is a laudable goal unto itself.

Thirdly, many believe that the culture sector is an important investment, which justifies the Status of the Artist Act. In a speech to the throne, the Minister of Communications asserted that in 1985, "the cultural sector was the ninth largest manufacturing industry in Canada and earned more than $12 billion" for the Canadian economy. (76) Today, that estimate is closer to Ca$45.6 billion, employing roughly 609,000 people in 2006. (77) Some think that the health of the cultural economy depends on the diversity and the number of professional Canadian artists, so we should do what we can to encourage them to work on their art. Although I appreciate the cultural sector's contributions to the economy, I contend as the Applebaum-Hebert Committee did in 1982 that employment and economic growth are goals most efficiently pursued through fiscal and commercial policies, and whatever effects cultural programmes have on the economy are best viewed as beneficial byproducts. (78)

The best reasons for giving artists the ability to bargain collectively in their negotiations with the Government are based in the principles that govern unionisation. Artists are usually independent contractors in their relationship with federal producers, and the general principle in labour law that independent contractors can adequately protect themselves in negotiating contracts with their engager is ill-founded in the case of artists. This assertion requires some explanation of labour law principles.

Only employees and 'dependent contractors' are protected under the Canada Labour Code; independent contractors who attempt to organise and bargain collectively are vulnerable to being found in violation of anti-combines legislation in a conspiracy to restrain trade. As independent contractors, artists are excluded from Canada's labour legislation. (79) Some artists' associations such as ACTRA (Alliance of Canadian Cinema, Television and Radio Artists), the American Federation of Musicians, and the Canadian Actors' Equity Association were actually obtaining written collective bargaining agreements on behalf of the Canadian artist as early as the 1940s. (80) However, these agreements were not enforceable by the courts, and because these associations were not authorised by the Canada Labour Code they were vulnerable to investigation and prosecution through the Competition Act or its legislative predecessor for conspiring to control the supply of services and fix prices. (81)

The reason that employees have the right to bargain collectively is because there is an assumption that employers can and should take responsibility for their employees, and that certain protections need to be in place to redress the power imbalance between master and servant and to achieve decent working conditions. (82) The reason that independent contractors are excluded from the right to bargain collectively is because they are presumed to be able to protect themselves through the principles of commercial contract law. This is because independent contractors are presumed to have equal bargaining power with the engager, as opposed to the subordinate employer-employee relationship.

However, these assumptions are erroneous when applied to artists engaged by federal producers. Collective bargaining is an essential tool for artists to establish higher wages, minimum safety standards, paid leave and other basic working conditions. An individual artist, regardless of his or her independence, is usually not as sophisticated in negotiating terms as a department of state or a broadcaster as large as the CBC, who might typically employ lawyers to bargain for it. An individual artist can profit from the focus and resources afforded by an artists' association.

Elizabeth MacPherson, general counsel and executive director for CAPPRT in the late 1990s and now Chairperson of CIRB, declared that:
   There is no apparent, principled reason for excluding workers from
   coverage under our labour legislation merely because, by employer
   fiat, they have been declared to be self-employed, independent
   contractors rather than employees. (83)


She asserts that the distinction between independent contractors and employees is blurred, and that independent contractors--such as artists--who are economically vulnerable by reason of disorganised market conditions should have access to collective bargaining so as to enhance their socio-economic position as a matter of coherent public policy. (84) This argument has already been successfully made for those who might be called 'dependent contractors', who are defined as "persons in a position of economic dependence on someone who engaged their services" and which includes fishermen and truck drivers. Dependent contractors were unfairly distinguished from employees and were exposed to market forces that are influenced by powerful industrial players--on that basis the Canada Labour Code allowed certain dependent contractors to unionise. (85) Therefore, extending collective bargaining rights to artists is justified.

Finally, artists stand to benefit from demanding collectively for a floor of benefits and rights in their employment. Under the Act, if an artist wants to negotiate better conditions than his or her artist association was able to bargain for, he or she is free to do so. (86)

Effectiveness of the Act

The Status of the Artist Act has been partially effective at achieving what it was intended to accomplish. Several scale agreements have been concluded since it was brought into force; eight scale agreements were filed with CAPPRT in the 2010-2011 fiscal year alone. (87) Terms of the agreements are wide ranging, often providing for minimum wages, basic employment protections and social security schemes as well as sophisticated industry-specific terms.

For example, in the 2003-2005 scale agreement between the Alliance of Canadian Cinema, Television and Radio Artists ('ACTRA') and CBC, the parties negotiated terms of work common to many employment contracts, such as rates of pay, overtime pay, rest periods, travel conditions, insurance payments and retirement benefits. (88) The agreement also included terms specific to performers. CBC is required under the contract to provide a room where performers can breathe clean air off the set when fire, fog or smoke is used on set. Dancers are not required to perform on concrete or marble floors. Actors need only rehearse nude for the final rehearsal. When work is postponed because of weather, CBC must compensate the performer. If CBC releases a home video of a programme, it must pay 8 per cent of the absolute gross sales revenue received by CBC to the performers, plus insurance and retirement plan contributions based on that gross payment to ACTRA in trust for the performers.

In the 2004-2008 scale agreement negotiated by the National Arts Centre Corporation and the Canadian Federation of Musicians, traditional terms of work include establishing sick leave, mandatory religious holidays, severance pay, pension plans, personal insurance, vacations and unpaid leaves of absence. (89) The National Arts Centre was also obliged to provide adequate washroom facilities where an outdoor concert was scheduled, custom-fitted earplugs for each musician and instrument insurance.

However, not all artists' associations have concluded scale agreements; some have not yet even sent a federal producer a notice to bargain. One possible reason for this is that artists' associations may have a lack of financial or other resources to begin negotiations, which is often a time-consuming and expensive process, particularly where legal counsel is retained. (90) Another reason identified by the 2002 Report is that the legislation does not contain an obligation to conclude a first agreement. (91) Although parties are required to meet and bargain in good faith within twenty days after a notice to bargain is issued, there is no requirement to conclude an initial agreement within any timeframe. Finally, some types of artists are more likely to bargain collectively. Whereas some artists often work in ensembles, such as dance troupes, orchestras or actors, others such as visual artists or writers tend to work alone and do not have the same collective aspect to their work.

Perhaps more importantly, given the impetus for the legislation, the Status of the Artist Act has been largely ineffective at improving the socio-economic status of Canadian artists. In 1989, three years before the Status of the Artist Act was passed, artists had an average income of Ca$15,877, about $900 on average more than the income a pensioner would make in that year. (92) In 2006, more than ten years after the legislation was enacted, the average income of a Canadian artist grew to Ca$22,700 not accounting for inflation. (93) That is not very impressive progress. In the 2002 Report, over half of the artists surveyed believed that the working conditions and economic circumstances of self-employed artists had not improved from 1995 to 2002. (94)

There have been some benefits to artists' associations however that may not be reflected in the statistics. In 2010, the Canadian Conference of the Arts commissioned a report on the status of the artist from Neil Craig Associates. The report describes the impact that artists' associations have had on gaining social security benefits for their members. The Directors Guild of Canada for example has life insurance, extended health and dental benefits available to members where engagers contribute to premiums. (95) Several associations have negotiated retirement plans. The American Federation of Musicians of the United States and Canada offers accident disability and critical illness insurance where artists pay premiums. This has gone some way to addressing the gap between benefits available to artists and other Canadian workers.

Limitations of the Act

The inability of the Act to have a measurable impact on the economic circumstances of Canadian artists can be explained by its limited scope. The most significant difficulty is that the legislation covers only contracts with federal producers; it does not bind provincial jurisdictions under which the majority of artistic and cultural production occurs. (96) To institute a collective bargaining scheme for artists in the provinces, each province would need to enact a scheme similar to the Status of the Artist Act. To date, only Quebec and Saskatchewan have implemented collective bargaining legislation for artists. Quebec has been called a world leader in improving the economic situation of its artists, passing collective bargaining legislation in 1987 and 1988, and allowing artists to deduct up to Ca$15,000 in copyright income from their provincial taxable income in 1995. (97) Saskatchewan's Arts Professions Act came into effect on 1st June 2010. (98) It does not authorise artists' associations to represent artists, but it does require provincial engagers to enter into written contracts with artists. (99) These contracts must contain terms of work and copyright, financial consideration and dispute resolution mechanisms.

Ontario, British Columbia and Newfoundland and Labrador have investigated the possibility of enacting collective bargaining legislation. In 2007, Ontario enacted the Status of Ontario's Artists Act, which is not a very meaningful piece of legislation. (100) The statute binds the Government of Ontario to promote Ontarian artists "as far as it considers it reasonable and appropriate to do so", and creates a 'Celebrate the Artist Weekend'. (101) British Columbia established an Advisory Committee on the Status of the Artist in February 1993, which recommended amending existing labour legislation to accommodate artists. (102) Nothing came from that recommendation, but analysts have been optimistic about the ability of the British Columbia Labour Relations Board to close the gap in the absence of labour reform:
   the British Columbia Labour Relations Board has been the most
   aggressive in the country in finding that artists can be considered
   "employees" for purposes of labour relations in the province. This
   has had enormous implications, particularly in the film and
   television production sector. (103)


For example, the BC division of ACTRA is responsible for negotiating and administering an agreement between actors and independent producers in British Columbia. In Newfoundland, the provincial government released a report in 2006 which promised to explore status of the artist legislation, but there appears to have been no progress on this initiative. (104)

The Canadian arts community asserts that another significant reason for the ineffectiveness of the Status of the Artist Act in improving their economic situation is that the Act deals only with labour relations. (105) The report of the Sub-Committee on the Status of the Artist, which led to passage of Bill C-7, made eleven recommendations for the improvement of the status of the artist. (106) These included giving self-employed artists the right to bargain collectively, giving artists dual status as employees for unemployment insurance purposes and as self-employed persons for taxation purposes, establishing private group benefit plans for creative artists, providing bankruptcy protection for self-employed artists, and implementing income averaging tax provisions for artists. Of these, only the collective bargaining recommendation was implemented by the Status of the Artist Act. It is interesting to note that in the surveys conducted by the Government in the 2002 Report:
   respondents rated the legal right to collective bargaining as the
   least important of ten existing and potential measures to improve
   the economic circumstances of artists, and gave measures such as
   deductions for business expenses, copyright, and income averaging a
   considerably higher rating of importance. (107)


Other measures that rated higher than collective bargaining rights include instituting a programme of payments to Canadian authors for their books catalogued in Canadian libraries (a 'public lending right') and compensation for public display of artwork (an 'exhibition right'). (108)

There are a few more possible reasons why the Act has been unable to make noticeable improvements to the economic circumstances of Canadian artists. As previously mentioned, some of the smaller associations have not yet managed to conclude any scale agreements. On the other hand, many of the established artists' associations already had voluntary collective bargaining agreements in place with federal producers. Although the Act gave those associations credibility and legitimacy in their negotiations, and made them immune from prosecution under the Competition Act, their members may not have noticed a considerable difference from before and after the Act. Lastly, federal producers may sub-contract their artistic and cultural production, and the Status of the Artist Act does not bind those third-party contractors. (109)

In sum, the Status of the Artist Act failed to make a measurable impact on the socio--economic status of the Canadian artist because the legislation is limited to federal jurisdiction, and limited to dealing with labour relations. Provinces should enact i similar collective bargaining legislation as they are bigger consumers of art than the federal Government. Provincial laws in this field can be justified on the same grounds that underpin the federal Status of the Artist Act: it is fair, reasonable, and coherent policy to give self-employed artists the right to bargain collectively in negotiations with Government. The lengths to which federal and provincial Government should go to making the occupation of professional artist a viable means of standalone employment, whether through tax or insurance mechanisms, is a fascinating question but unfortunately beyond the scope of this paper.

CONCLUSION

The Status of the Artist Act may be criticised for being too elaborate for the purpose it was intended to serve. The CCSA became defunct soon after the Act came into force; the CAPPRT seems to have fulfilled its primary function by defining the cultural sectors appropriate for representation and certifying associations for those sectors. Other private or public agencies are well placed to take over their roles.

With regards to the labour framework that it creates, the Status of the Artist Act is good legislation. The collective bargaining scheme is justified on labour principles: individual artists are often not very sophisticated bargaining agents in comparison with large federal agencies and are not inherently effective at protecting themselves through contract law just by virtue of being an 'independent contractor'. Insofar as this statute can help to create conditions that enable the professional artist to sing, dance, act, paint or write, and thereby colour and enliven Canadian culture, it is valuable. Unfortunately, the Status of the Artist Act suffers from limitations that prevent it from unilaterally improving the socio-economic status and working conditions of the Canadian artist. Because most artistic work in Canada takes place under provincial jurisdiction, provinces are better suited to effecting this change.

In 1951, the Massey-Levesque Report grandly suggested that supporting artists is the duty of a civilisation:
   one measure of the degree of civilization attained by a nation
   might fairly be the extent to which the nation's creative artists
   are supported, encouraged and esteemed by the nation as a whole.
   (110)


At a minimum, the federal and provincial Governments of Canada should empower professional artists to define the terms and conditions under which they work for the public as fair compensation for the art, literature, music, theatre and films which we all enjoy.

* Articling student at Gowling Lafleur Henderson LLP in Vancouver. This paper was originally presented as part of the Seminar on Cultural Heritage and Art Law under the supervision of Professor Robert Paterson, University of British Columbia.

(l) National Gallery of Art, 'Who Am I? Self-Portraits in Art and Writing', online: <http://www. nga.gov/education/classroom/self_ortraits/bio_van_gogh.shtm>.

(2) Peggy Connolly et al., Ethics in Action: A Case-Based Approach (Wiley-Blackwell, West Sussex, UK, 2009) at 100.

(3) SC 1992 c 33 [Status of the Artist Act].

(4) Recommendation concerning the Status of the Artist, 27 Oct. 1980, UNESCO, online: <http://portal.unesco.org/en/ev.php-URL_ID=13138&URL_DO=DO_TOPIC&URL_ SECTION=201.html> [UNESCO Recommendation concerning the Status of the Artist].

(5) Hill Strategies Research Inc. 'Artists in Large Canadian Cities Based on the 2006 Census' Ontario Arts Council (Sept. 2009), at 8, online: The Ontario Arts Council <http://www.arts. on.ca/AssetFactory.aspx?did=6176> [Hill Strategies Research].

(6) House of Commons Debates, 34th Parl, 3rd Sess, Vol III (9 Oct. 1991) at 3550 (Nicole Roy-Arcelin) [House of Commons Debates 1991]; Garry Neil, 'Status of the Artist in Canada: An Update on the 30th Anniversary of the UNESCO Recommendation concerning the Status of the Artist'" Canadian Conference of the Arts (Sept. 2010), online: The Canadian Conference of the Arts <http://ccarts.ca/wp-content/uploads/2010/10/StatusoftheArtistReport1126101-Copy. pdf> [Nell 2010].

(7) House of Commons, Subcommittee on the Status of the Artist of the Standing Committee on Communications and Culture, 'Minutes and Proceedings of the Subcommittee on the Status of the Artist' (Dec. 1989) (Chair: Jean-Pierre Hogue) at 13 [Subcommittee on the Status of the Artist].

(8) In a brief submitted to the Massey-Levesque Commission, the Canadian Authors Association wrote this: "If once in a lifetime, a Canadian novelist sells to an American Book Club, he is taxed at a millionaire rate, although for years his income may have been or may in the future be below even subsistence level." Canada, Royal Commission on National Development in the Arts, Letters and Sciences, Report of the Royal Commission on National Development in the Arts, Letters and Sciences: 1949-1951, (Ottawa: Edmond Cloutier Press, 1951) at 245 (Chairs: Vincent Massey & Georges-Henri Levesque) [Massey-Levesque Report].

(9) Subcommittee on the Status of the Artist, 7 at 13.

(10) Neil 2010, 6 at 6.

(11) Neil 2010, 6 at 8. For example, the Lemeac publishing house went bankrupt in 1988 and many months' of royalties owed to authors including Antonine Maillet and Gratien Gelinas were lost to creditors. Subcommittee on the Status of the Artist, 7 at 15.

(12) Danielle Cliche, 'Status of the Artist or of Arts Organizations? A Brief Discussion on the Canadian Status of the Artist Act', online: (1996) 21:2 Canadian Journal of Communications 3 <http://www.cjc-online.ca/index.php/journal/article/view/939/845>[Cliche].

(13) Ibid.

(14) One recital in particular encapsulates the flavour of the document as it pertains to employment conditions of artists: "Convinced that action by the public authorities is becoming necessary and urgent in order to remedy the disquieting situation of artists in a large number of Member States, particularly with regard to human rights, economic and social circumstances and their conditions of employment, with a view to providing artists with the conditions necessary for the development and flowering of their talents and appropriate to the role that they are able to play in the planning and implementation of cultural policies and cultural development activities of communities and countries in the improvement of the quality of life". UNESCO Recommendation concerning the Status of the Artist, above,note 4.

(15) Canada, Federal Cultural Policy Review Committee, Report of the Federal Cultural Policy Review Committee, (Ottawa: Department of Communications, 1982) (Chairs: Louis Applebaum & Jacques Hebert) [Applebaum-Hebert Report], cited in Canada, Minister of Canadian Heritage, Evaluation of the Provisions and Operations of the Status of the Artist Act, (Ottawa: Department of Canadian Heritage, 2002), online: <http://www.capprt-tcrpap.gc.ca/eic/site/ capprt-tcrpap.nsf/eng/tn00164.html> [Evaluation of the Provisions and Operations of the Status of the Artist Act].

(16) House of Commons Debates, 34th Parl, 3rd Sess, Vol IX (11 June 1992) at 11858 (Hon Perrin Beatty) [House of Commons Debates 1992].

(17) Canada was the first country in the world in 1992 to pass legislation explicitly providing independent contractors with collective bargaining rights; however, it was following the lead of the Quebec government, which passed two Acts allowing artists to unionise in 1987 and 1988. Elizabeth MacPherson, Collective bargaining for independent contractors: is the Status of the Artist Act a model for other industrial sectors? (LLM Thesis, University of Ottawa, 1999) at 2, online: <http://www.capprt-tcrpap.gc.ca/eic/site/capprt- tcrpap.nsf/vwapj/Docelizabethmacpherson_eng.pdf/$file/Doc-elizabethmacpherson_eng.pdf>; An Act respecting the Professional status and conditions of engagement of performing, recording and film artists, RSQ, c S-32.1 ; An Act respecting the Professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, RSQ, c S-32.01.

(18) Status of the Artist Act, above, note 3, s. 7.

(19) Ibid., s. 5 'scale agreement'.

(20) Ibid., s. 35.

(21) Ibid., s. 5 'producer'.

(22) Ibid., s. 36.

(23) Ibid., s. 33.

(24) Ibid., s. 34. From the scale agreements that I have seen, the operation of these agreements tend to run between one and five years in length.

(25) Ibid., ss. 5 'pressure tactic', 46, 47, 48.

(26) Ibid., s. 57.

(27) Ibid., ss. 5 'producer', 6(2); Access to Information Act, RSC 1985 c A-I, Schedule I; Privacy Act RSC 1985 c P-21, Schedule.

(28) Status of the Artist Act, 3, s. 18(b).

(29) Ibid., s. 6(2)(b); Status of the Artist Professional Category Regulations, SOR/99-191, s. 2(1). Artists are people who "(i) are authors of artistic, dramatic, literary or musical works within the meaning of the Copyright Act[RSC 1985 c C-42], or directors responsible for the overall direction of audiovisual works, (ii) perform, sing, recite, direct or act, in any manner, in a musical, literary or dramatic work, or in a circus, variety, mime or puppet show, or (iii) contribute to the creation of any production in the performing arts, music, dance and variety entertainment, film, radio and television, video, sound-recording, dubbing or the recording of commercials, arts and crafts, or visual arts, and fall within a professional category prescribed by regulation."

(30) Status of the Artist Act, 3, s. 4(2).

(31) Evaluation of the Provisions and Operations of the Status of the Artist Act, 15.

(32) Ibid.

(33) Jane Taber, 'Stockwell Day Axes 245 Jobs in First Cut', Globe and Mail, 8 March 2010, available online at: <http://www.theglobeandmail.com/news/politics/ottawa_notebook/ stockwell-day-axes-245-jobs-in-first-cut/article1493551/>.

(34) Evaluation of the Provisions and Operations of the Status of the Artist Act, above, note 15.

(35) Ibid.; Garry Neil, 'The Status of Status: Update on Initiatives to Improve the Socio-Economic Status of Canadian Artists' Canadian Conference of the Arts (7 Feb. 2007), available online: <http://ccarts.ca/wp-content/uploads/2011/09/statusofstatus_neilcraig_120407.pdf> [Neil 2007].

(36) Canada Council for the Arts Act, RSC 1985, c C-2, s. 8.

(37) Canada Council for the Arts, Annual Report 2010-11, (Ottawa: Canada Council for the Arts, 2011) at 12-13, available online: <http://www.canadacouncil.ca/> [Canada Council for the Arts Annual Report].

(38) For example, their stated current priorities on which they are advising government are charitable registration for arts organisations under the Income Tax Act, the cultural implications of the Comprehensive Economic Trade Agreement between Canada and the European Union, and the views of the arts community on copyright reform in Bill C-11 that at the time of writing is in second reading. Canadian Conference of the Arts, 'Current Priorities' (13 Jan. 2012), online: Canadian Conference of the Arts <ccarts.ca>.

(39) Canadian Conference of the Arts, 'Our Members', online: Canadian Conference of the Arts <ccarts.ca>.

(40) Evaluation of the Provisions and Operations of the Status of the Artist Act, 15.

(41) Status of the Artist Act, 3, ss. 17(p)(iv), 26, 27.

(42) Ibid., s. 26.

(43) Union des artistes, 'Qu'est-ce que l'UDA?', available online: <https://uda.ca/UDA-la-culture-est-une-force-qu- est-ce-que-l-uda-853>.

(44) Union des artistes, 'Historique', available online: <https://uda.ca/UDA-la-culture-est-une-force-historique-898>.

(45) Canadian Artists 'Representation/Le Front des artistes canadiens (CARFA C) v. National Gallery of Canada (NGC) (16 Feb. 2012), 53, available online: CAPPRT <http://www.capprt-tcrpap. gc.ca/eic/site/capprt-tcrpap.nsf/eng/tn00626.html> at para. 97 [CARFA C v NGC]. The Canadian Artists Representation/Le Front des artistes canadiens (CARFAC), for example, is certified to represent "a sector composed of all independent professional visual and media artists in Canada who are authors of original artistic works of research or expression in the form of painting, sculpture, printmaking, engraving, drawing, installation, performance art, craft-based media, textile art, fine art film and video art, fine art photography or any other form of expression of the same type engaged by a producer." However, CARFAC's certification excludes representation for artists covered by the certification granted to the Conseil des metiers d'art du Quebec, the Regroupement des artistes en arts visuels du Quebec, the Canadian Association of Photographers and Illustrators in Communications, the Association des realisateurs et realisatrices du Qudbec, and the Writers Guild of Canada.

(46) Status of the Artist Act, above, note 3, s. 28(1).

(47) Ibid., note 3, s. 29.

(48) Alliance of Canadian Cinema, Television and Radio Artists (Performers Guild), Associated Designers of Canada, Association des professionnels des arts de la scene du Quebec, Association quebecoise des auteurs dramatiques, Alliance quebecoise des techniciens de l'image et du son, Association des realisateurs et realisatrices du Quebec, Canadian Actors' Equity Association, Canadian Association of Photographers and Illustrators in Communications, Canadian Artists' Representation/Le Front des artistes canadiens (CARFAC), Conseil des metiers d'art du Quebec, Canadian Federation of Musicians/Federation canadienne des musiciens, Directors Guild of Canada, Editors' Association of Canada/Association canadienne des reviseurs, La Guilde des musiciens et musiciennes du Quebec, Playwrights Guild of Canada, Periodical Writers Association of Canada, Le Regroupement des artistes en arts visuels du Quebec, Screen Composers Guild of Canada, Societe des auteurs de radio, television et cinema, Societe professionnelle des auteurs et des compositeurs du Quebec, the Writers' Union of Canada, Union des artistes, Union des ecrivaines et ecrivains quebecois, and the Writers Guild of Canada. Canadian Artists and Producers Professional Relations Tribunal, 'Certification Register' (14 Nov. 2011), available online: CAPPRT <http://www.capprt-tcrpap.gc.ca/eic/site/capprt-tcrpap. nsf/eng/h_tn00047.html>.

(49) Ibid.

(50) Status of the Artist Act, above, note 3, s. 41.

(51) Ibid., s. 54.

(52) Canadian Artists and Producers Professional Relations Tribunal, 'Decisions' (24 Feb. 2012), online: CAPPRT <http://www.capprt-tcrpap.gc.ca/eic/site/capprt-tcrpap.nsf/eng/h_tn00046. html>.

(53) CARFAC v. NGC, above, note 45.

(54) Ibid., at para. 74.

(55) Ibid., at para. 170.

(56) Ibid., at paras 150, 152.

(57) Canadian Artists and Producers Professional Relations Tribunal, 'Members of the Tribunal' (29 Jan. 2009), online: CAPPRT <http://www.capprt-tcrpap.gc.ca/eic/site/capprt-tcrpap.nsf/ eng/h_tn00020.html>.

(58) Ibid.

(59) Ibid.

(60) Status of the Artist Act, above, note 3, s. 5 'Minister'; Canadian Artists and Producers Professional Relations Tribunal, 2010-2011 Annual Report, (Ottawa: Minister of Public Works and Government Services Canada, 2011) available online: <http://www.capprt-tcrpap.gc.ca/ eic/site/capprt-tcrpap.nsf/eng/tn00627.html> [CAPPRT 2010-2011 Annual Report].

(61) Ibid.

(62) Evaluation of the Provisions and Operations of the Status of the Artist Act, above, note 15.

(63) For purposes of comparison, CIRB has eleven full-time members and three part-time members, and a net cost of operations of Ca$17 million. Canada Industrial Relations Board, 'CIRB Members' (5 Dec. 2011), available online: <http://www.cirb-ccri.gc.ca/about-apropos/ members-membres/index_eng.asp>; Canada Industrial Relations Board, 2010-2011 Financial Statements, (Ottawa: Canada Industrial Relations Board, 2011), online: <http://www.cirb-ccri. gc.ca/publications/financial_statement_dpr10-11-etats_financiers_rmr10-11_eng.asp>.

(64) Evaluation of the Provisions and Operations of the Status of the Artist Act, above, note 15.

(65) I would expect savings to be in the hundreds of thousands, given the current operating cost of $1.2 million. I see no reason for reduced costs to reach a magnitude of $3-4 million per year, as suggested in a 1998 discussion paper cited in Evaluation of the Provisions and Operations of the Status of the Artist Act, above, note 15. It should be noted that CAPPRT has been inventive in finding cost-saving mechanisms. In 2005, David Silcox reported that the Tribunal signed service contracts with other government departments where full-time services were not required, shared administrative services with the Office of the Chief Review Officer as well as a financial officer with another small agency. David Silcox, 'Speaking Notes for the Chairperson of the Canadian Artists and Producers Professional Relations Tribunal to the Standing Committee on Human Resources Development (HUMA)' (Paper delivered to the Standing Committee on Human Resources, Skills Development, Social Development and the Status of Persons with Disabilities (HUMA), Ottawa, 10 May 2005), available online: <http://www.capprt-tcrpap. gc.ca/eic/site/capprt-tcrpap.nsf/eng/tn00398.html>.

(66) Canada Industrial Relations Board, "Decisions" (22 March 2012), available online: <http:// www.cirb-ccri.gc.ca/decisions/index_eng.asp?sort=chrono&order=ASC&page=1>.

(67) Canadian Artists and Producers Professional Relations Tribunal, Information Bulletin, No 34 (Ottawa: CAPPRT, 2008), available online: <http://www.capprt-tcrpap.gc.ca/eic/site/capprt-tcrpap.nsf/eng/tn00422.html>.

(68) Canada Labour Code, RSC 1985, c L-2, s 28(c).

(69) Lorraine Farkas, 'Self-Employed Workers and Collective Bargaining', available online: (1999) 2:2 Workplace Gazette <http://www.capprt-tcrpap.gc.ca/eic/site/capprt- tcrpap.nsf/vwapj/Doclorrainefarkas_eng.pdf/$file/Doc-lorrainefarkas_eng.pdf>.

(70) John Moreau, 'Speaking notes for John M. Moreau, QC, Chairperson of the Canadian Artists and Producers Professional Relations Tribunal to the Standing Committee on Human Services of the Legislature of Saskatchewan' (Paper delivered to the Standing Committee on Human Services of the Legislature of Saskatchewan, Saskatoon, 26 Feb. 2007), available online: <http://www.capprt-tcrpap.gc.ca/eic/site/capprt-tcrpap.nsf/eng/tn00361.html>.

(71) CAPPRT 2010-2011 Annual Report, above, note 60.

(72) Ibid.

(73) Subcommittee on the Status of the Artist, 7 at 10.

(74) Arts and culture contributed Ca$45.6 billion to the Canadian economy in 2010. Canada Council for the Arts Annual Report, 37 at 15.

(75) Applebaum-Hebert Report, 15 at 68.

(76) Subcommittee on the Status of the Artist, 7 at 8.

(77) Canada Council for the Arts Annual Report, 37 at 15. This is based on Statistics Canada: the Conference Board of Canada in 2007 estimated larger numbers, with the cultural sector contributing $84.6 billion and employment at 1.1 million jobs in 2007. Neil 2010, 6 at 29.

(78) Applebaum-Hebert Report, 15 at 8 and 64.

(79) In fact, standards established by the International Labour Organization "allow for derogations or even expressly exclude artists due to the special conditions in which artistic activity takes place." MacPherson, above, note 17 at 3.

(80) American Federation of Musicians, '1940-1949' available online: <http://www.afm.org/about/ our-history/1940-1949>; Canadian Actors' Equity Association, "Equity's history" (14 Nov. 2005), available online: <http://www.caea.com/EquityWeb/AboutEquity/Historytimeline. aspx>.

(81) Competition Act, RSC 1985, c C-34; Evaluation of the Provisions and Operations of the Status of the Artist Act, 15.

(82) Brian Langille & Guy Davidov, 'Beyond Employees and Independent Contractors: A View from Canada' (1999), 21 Comp. Lab. L.& Pol'y J. 7, cited in Labour and Employment Law: Cases, Materials, and Commentary, eds Bernard Adell et al., (2004, Irwin Law, Toronto) at 102.

(83) MacPherson, 17 at 46. Indeed, MacPherson suggests that the collective bargaining rights regime established by the Status of the Artist Act might be a good model for the unionisation of independent contractors in other sectors.

(84) H.W. Arthurs, 'The Dependent Contractor: A Study of the Legal Problems of Countervailing Power' (1965) 16 UTLJ 89, cited in MacPherson 17 at 46, 47.

(85) Arthurs, above, note 84, as cited in MacPherson, above, note 17 at 46, 48; Canada Labour Code, 68 at s. 3 'dependent contractor' and 'employee'.

(86) Status of the Artist Act, 3, s. 33(4).

(87) CAPPRT 2010-2011 Annual Report, 60.

(88) Canadian Artists and Producers Professional Relations Tribunal, 'Performers' Television Agreement between the Canadian Broadcasting Corporation and The Alliance of Canadian Cinema, Television and Radio Artists July 1, 2002 to June 30, 2005', available online: <http:// negotech, labour.gc.ca/eng/agreements/history/03000-03999/0397108a.pdf>.

(89) Canadian Artists and Producers Professional Relations Tribunal, 'Collective Agreement between National Arts Centre Corporation and the Musicians Association of Ottawa-Gatineau (Local 180) American Federation of Musicians of the United States and Canada 2004-2007', available online: <http://negotech.labour.gc.ca/eng/agreements/history/07000-07999/0757508a.pdf>.

(90) Evaluation of the Provisions and Operations of the Status of the Artist Act, 15.

(91) Ibid.

(92) House of Commons Debates 1992, 16.

(93) Hill Strategies Research, 5 at 8.

(94) Evaluation of the Provisions and Operations of the Status of the Artist Act, 15.

(95) Neil 2010, 6 at 8.

(96) Evaluation of the Provisions and Operations of the Status of the Artist Act, 15; Nei12007, 35 at 8.

(97) Neil 2010, 6 at 13; An Act respecting the Professional status and conditions of engagement of performing, recording and film artists, above, note 17; An Act respecting the Professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, above, note 17.

(98) Arts Professions Act, SS 2009, c A-28.002.

(99) Ibid., s. 9.

(100) Status of Ontario's Artists Act, SO 2007, c. 7.

(101) Ibid., ss. 5, 6.

(102) British Columbia, Legislative Assembly, British Columbia Advisory Committee on the Status of the Artist, In Spirit and in Law. Report of the British Columbia Advisory Committee on the Status of the Artist (Feb. 1994) (Chairs: Zool Suleman and Daphne Goldrick).

(103) Nei1 2010, 6 at 17.

(104) Available at Newfoundland & Labrador, Department of Tourism, Culture and Recreation, 'Strategic Cultural Plan--Creative Newfoundland and Labrador: The Blueprint for Developing and Investing in Culture' (St. John's: Department of Tourism, Culture and Recreation, 2006), available online: <http://www.tcr.gov.nl.ca/tcr/publications/2006/culturalplan2006.pdf?>.

(105) Evaluation of the Provisions and Operations of the Status of the Artist Act, 15.

(106) Subcommittee on the Status of the Artist, above, note 7 at 7.

(107) Evaluation of the Provisions and Operations of the Status of the Artist Act, 15.

(108) Ibid.

(109) Ibid.

(110) Massey-Levesque Report, above, note 8 at 182.
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Author:Winters, Julia
Publication:Art Antiquity & Law
Date:Oct 1, 2012
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