Proceedings of the Subcommittee on
Human Resources
Issue No. 1 - Evidence - June 19, 2018
OTTAWA, Tuesday, June 19, 2018
The Subcommittee on Human Resources met this day in public at 5:53 p.m., pursuant to rule 12-7(1), for the consideration of financial and administrative matters (Topic: Review of the Senate’s Harassment Policy); and in camera, for consideration of a draft report.
Senator Raymonde Saint-Germain (Chair) in the chair.
[Translation]
The Chair: Honourable senators, this evening we are continuing our review of the Senate’s policy on preventing and resolving harassment in the workplace. I welcome the public to this meeting.
The subcommittee was created on December 7, 2017, by the Standing Committee on Internal Economy, Budgets and Administration to examine the Senate’s policy on preventing and resolving harassment in the workplace.
This evening, we are hearing from two groups of witnesses. First, we have the pleasure of hearing from Katherine Lippel, Professor and Holder of the Canada Research Chair on Occupational Health and Safety Law at the University of Ottawa. Ms. Lippel, thank you for joining us and for participating this evening. I want to apologize on behalf of the committee members who had to make you wait because the sitting hours in the chamber were extended. Without further ado, I invite you to make your presentation.
Katherine Lippel, Professor and holder of the Canada Research Chair on Occupational Health and Safety Law, University of Ottawa: Thank you very much, Madam Chair. You don’t have to apologize; it’s completely understandable. Thank you for the invitation. I have prepared a few pages of not notes, but at least comments I will read to you.
[English]
I’m mostly going to be speaking English. You have references at the end, and I’ve provided Mr. Charbonneau with copies of what I’ve prepared because I’m going to refer to studies and you will be able to see what I’m talking about when you see them.
The Chair: Don’t worry. We have very skilled translators and interpreters.
Ms. Lippel: I will try to be a decent witness and not switch back and forth between languages. Thank you for your patience.
Thank you for the introduction. Essentially, I’ll say a few words about what I do and who I am, because I think that will facilitate the questions afterwards. I’m a lawyer by training. I’m a member of the Quebec bar. I’m in the civil law section, so I’m a professor of Quebec law. I hold the Canada Research Chair in Occupational Health and Safety Law, which means I work with dozens of people who are not lawyers, and most of my research is interdisciplinary.
In relation to what is of interest to you tonight, I’ve done some work with the International Labour Organization recently, where I prepared a document for them called “Addressing Occupational Violence,” which looks at all the literature on definitions of different categories of violence, on the one hand, and literature on the regulatory strategies around the world. The context of that was that the ILO is preparing an international convention on occupational violence, and lots of things happening in Canada, including Bill C-65 and including modifications of laws across Canada, are in the context of this international convention that is in the process of being negotiated.
The first draft of the convention was adopted June 8, 2018, so this is recent stuff, basically. Things are moving along very rapidly. In this context, I’ve produced documents, on the one hand, and in the references you’ll have a reference to the draft convention that has been adopted.
I’ve worked with the Canadian delegation, employers, workers’ representatives and government representatives prior to the meeting in Geneva, and we’ve been exchanging on different concepts.
Bill C-65, as I say, was part of the context in which this international convention was adopted. I believe that the federal government, among other things, is aware of Canada’s obligations to be a leader in occupational violence in the world, and they are certainly a leader at these discussions in Geneva.
For the other part of my experience that I will be referring to, I’m going to switch to French because I did it in French.
[Translation]
I was a researcher for the Enquête québécoise sur les conditions de travail, de l’emploi et de santé et sécurité du travail, EQCOTESS, which is a Quebec survey funded by the province’s Ministry of Labour, Employment and Social Solidarity that provides a sample of more than 5,000 people representing Quebec’s working population. It was carried out by the Institut de la statistique du Québec, the Institut national de santé publique du Québec, the INSPQ, and the Institut de recherche Robert-Sauvé en santé et en sécurité du travail, the IRSST. I was in charge of the portion on violence in the workplace. Some of your questions concern the prevalence, for example, of various forms of violence. I could at least paint you a picture of the Quebec situation. Dr. Michel Vézina was the director of that survey. At the INSPQ, he is responsible for anything related to psychosocial risks, including violence in the workplace, and I consulted him before coming to meet with you. I discussed your project with him and Dr. Mariève Pelletier, who works at the INSPQ. So, even though I am a lawyer, I obtained information from non-lawyers and more specifically health experts.
[English]
I read your policy in both French and English, and I also read the proceedings from June 5 and June 12. As I say, I shared your policy with my colleagues in Quebec, who are specialists in prevention of violence and health issues related to violence. When I say “violence,” of course, harassment and bullying are included within the purview of violence in my language. Because I agree with the vast majority of everything that was said by the previous witnesses, I’m not going to say everything they said, essentially. I’m happy to answer questions. There are a couple of things I’m not totally in agreement with, which I will mention, but I’m not going to say every time, “As the other witness said, this is a good idea.” In the interest of brevity, I will focus on novel aspects of my comments in relation to your policy.
My first comment is in relation to the definitions. I have two messages on that. I think it’s key to have the full spectrum of violence, which therefore includes sexual harassment, gender-based harassment, discriminatory harassment, bullying harassment, what the Swedes call mobbing — depending on what country you come from, you call it mobbing, bullying, psychological harassment. The broad spectrum of behaviours that are known to be forms of psychological violence need to be covered by your policy as such. A very short piece of advice is to pay attention to the definitions in Bill C-65 and the regulations, because it would be confusing to a lot of people to have that body of legislative framework with one definition. The regulations are going to complete the definition. If you have different definitions, I think that might be problematic. But obviously it’s your policy, and do as you see best in relation to that.
I have one minor comment in relation to the old policy that you’re revising. You use the word “conflict” often, and it’s important to avoid subsuming harassment and bullying as conflict. If you want to use it, define it, but you can have harassment where you give somebody an office with no phone and nothing to do. That’s harassment. There’s no conflict there. It can kill people. There are suicides in France that are currently the subject of criminal charges against France Télécom. They were often not conflicts at all; they were sending people away to do nothing so that they quit their jobs. So make sure you’re careful about the use of the world “conflict” in your policies.
I’m pleased you’ve decided to already start the training. I think that’s an excellent initiative. You are the experts in the Senate. I am no expert in the Senate, but from I’ve read about what has taken place thus far, senators and their staff are like small businesses. There’s a broad range of literature on how to prevent harassment in small businesses, so inform yourselves — or your staff will inform you, I guess — of what that literature says.
For example, I do a lot of work internationally, and the Belgian legislation says you have to have a person of confidence who is named. A person of confidence can be in a large enterprise, but if it’s a small business, you want somebody who’s outside. That could be somebody who is on staff, completely from a different institution. Think of yourselves as small businesses who can learn from the good practices of legislation like the Belgian legislation that has developed tools for small businesses. Remember that you’re a small workplace, but at the same time you’re a very large workplace, if you have 400 people, so when unions can be involved, they should be involved. HR can be involved; they should be involved. You’re a hybrid type of organization, and you can profit from the good practices of both large and small businesses, but just be aware that you’re both.
[Translation]
The Belgian legislation talks about a person of trust. The Quebec National Assembly adopted a policy on harassment within the National Assembly that applies to departments. In my document, I provided a link to that policy. The policy talks about a reference person for harassment cases. According to that concept, someone is appointed to listen first, before investigating, to the individual experiencing harassment.
[English]
It is the target of harassment. I try to avoid using the word victim, but the person who is targeted by harassment has a person of confidence to whom they can go and speak freely and anonymously and get advice. That is present in the National Assembly policy. It’s present in the Belgian legislation. I think it’s a good practice that you can consider.
Ensure robust protection from reprisals, both for the target of bullying and for the witnesses and the whistle-blowers. It’s important to realize that for people who are afraid to speak up when they witness harassment, be it sexual harassment or bullying, if there are robust protections for those people, you’re more likely to have people come forward. The earlier people come forward, the better it is for the institution because you can solve the problem before people start becoming ill. It’s really a public health issue if you let this fester. Therefore, that would be a piece of advice I would suggest.
In terms of inquiry mechanisms and the choice of investigator, the person chosen by the parties to do the inquiry, I’ve benefited from seeing not only the discussions on Bill C-65 but there is also a PowerPoint presentation on the consultation of the regulations for Bill C-65. If you haven’t seen that — I’m looking in particular at the people who are going to support you in this endeavour — it’s worth seeing what they’re contemplating for that regulation. One of the things they’re contemplating is a joint nomination by both parties so that the person who conducts the inquiry is somebody who is found to be credible by both parties.
I didn’t participate in the consultation because I was out of the country at the time. As a Senate, you can think about how you’re going to nominate the people who are going to do the inquiries and who is the party you’re talking about when we say “both parties.” When we’re talking about Bill C-65 and about the Public Service of Canada, in my mind, it was clear it would be the union and human resources who would be both parties. It’s perhaps not clear for the people drafting the legislation and perhaps not clear for you either. I think what you should avoid is that the so-called accused harasser or perpetrator and the victim being the “both parties” who choose who is going to inquire. That may be an opportunity to revictimize the victim. For instance, if you have a senator who is accused and a page who is the victim, this is not an equal playing field. If it’s a list of people approved by both unions and representatives of HR, perhaps for the whole Senate, even including senators, it would avoid that imbalance. That would be something that you can look at.
Ensure adequate financing of independent inquiries. You’re going to need a budget. That will have to be a budget that will answer to the demand.
Ensure the inquiry is held before the determination of the validity of the complaint. When I read the first draft, the old version, you get the feeling that somebody decides internally, like the whip, whether this is a valid complaint and then send it to an inquiry. I think that is not a good order of things. You should do an independent inquiry once something is brought to your attention.
This is where I disagree with some of the people who intervened. I would say you should avoid imposing rigid timelines. I saw in your debates that you want to get this over with, and we get that, but what you have to remember is that, particularly for targets of bullying, some of the people are on sick leave and they’re at risk for suicide when it’s very serious. You don’t want to say, “Get here or get out” to those people. I’m sure you know this as soon as I bring this to your attention.
I work with people who are doctors in the public health system in Quebec, and my specialty is workers’ compensation, and Quebec has always provided coverage for these cases since the 1980s. Some people are very ill and some people are attempting suicide. You want to make sure you have reasonable flexibility in your rules so it doesn’t become a new source of stress for the people involved. To a lesser extent, that can also be true for the perpetrator, because sometimes you have perpetrators who can develop mental health problems related to the stress associated with the process. You have to do something that’s effective. You don’t want this to go on for four years, but at the same time, you have to respect the health of everybody involved and make sure you have a respectful process.
I have a few suggestions — we’re almost done; I’m on the last page — to promote better prevention. I think this is key, and I haven’t seen enough emphasis on this in the discussions I’ve read. One of your witnesses talked about stress, which is an appropriate word and a generic word, but what we talk about is psychosocial risk factors in the workplace. There’s a huge body of literature included in my report to the ILO. For instance, when people have high-demand, low-decision latitude, that’s stressful for everyone in the workplace. If you are a secretary and you answer to six different people who want everything yesterday, that can have a spillover effect that poisons the work environment. There are lots of studies that show this is an underpinning of workplace bullying and harassment. Job insecurity is another psychosocial hazard.
If part of your process before somebody starts complaining about harassment is taking the temperature of the workplace and looking at the hazards about which people are complaining and saying they’re exposed, that can serve well for prevention, because those are fertile conditions for conflict.
Another facet is that precarious employment is shown to be related to sexual harassment in particular — not so much bullying. Bullying we see in a lot more permanent employees. It’s trying to get rid of them and make it impossible for them to continue. I talked to you about France Télécom, and you might have questions about that. There are criminal charges against the CEOs of France Télécom in France because it is alleged they decided to get rid of these people with good job security by making their lives difficult through bullying.
It can be horizontal and it can be vertical. Horizontal is worker-on-worker harassment or senior managers harassing other senior managers. In EQCOTESST, we found that this is gendered. For men, the higher they are in the hierarchy, the more they are protected from harassment. It’s statistically significant that if you are a CEO or even if you are a professional and a man, you are less likely to be harassed than if you’re at the bottom of the hierarchy or even if you are a blue-collar worker, skilled tradesman or even a supervisor. On the other hand, for women, there was no statistically significant difference between secretaries and CEOs. You’re not protected because you’re moving up. Hypothetically, a senator who is a woman is just as easily a target of psychological harassment, which is what I’m talking about here, as would be a page, which is something you need to take into consideration in your policies.
Somebody recommended, and I completely agree, that surveying your people is a good idea. You probably know about it, but just in case — because I didn’t see it mentioned anywhere — there’s the Public Service Employee Survey done regularly in the Public Service of Canada. You have results for all public servants in Canada. I’ve spoken to Justice and Labour. I’ve done presentations based on the data that come out of this. It’s a precious tool. It started under the Harper administration — 2011, 2014, 2017 — and there’s data for the whole public service. I couldn’t find the Senate. That might be my skill set, or it might be that you’re not being surveyed. But don’t reinvent the wheel. Take that survey. It’s great, because you can compare yourself to yourself over the years. At the same time, you can see your strengths and your weaknesses. Everybody does something well, and everybody does something less well. It’s a great tool, and it doesn’t cost anything because it’s already out there.
Monitor complaints. Keep your statistics, both for sexual harassment but for the different categories of harassment as well — racist harassment, discriminatory harassment, LGBT/sexual orientation — disability is an important issue in relation to harassment.
In conclusion — overarching considerations: I’ve already mentioned it, but don’t forget the health of the targets. People become extremely ill. Mental health problems are documented and some physical health problems as well. There’s a huge body of literature if you’re interested in knowing more. Be carefully of timelines. We all want to be efficient, I’ve made that point, and I make it again. Think about the mental health of everyone involved before you say “60 or 90 days, after which it’s over.” Quebec just changed its law from a 90-day harassment complaint to two years. They did that last week. It’s important to pay attention to delays as well.
Finally — last message — respect the target’s voice. What does he or she want? Find a safe place for that to be made clear. Sometimes people just want to make it stop. Sometimes they want justice, to be recognized that their harassment has existed. What the person wants is going to really inform the way you’re going to deal with the subsequent steps.
That’s what I would have to say to you. I hope I didn’t take too much time.
Senator Scott Tannas (Deputy Chair) in the chair.
The Deputy Chair: Thank you. We will go to questions now.
Senator Jaffer: Thank you. This was very useful.
Since this work started, I’ve been really struggling, because every time we hear from witnesses, I keep saying, “But we are different.” I’m not an artist, but the best way I can share it with you is with this big building. There are 105 businesses, and then there is administration. I’m putting it on the bottom but it could be anywhere. There’s a foundation of administration that serves these offices to meet our needs and many things, and then we have our own staff. Then on the top, we have an institution, but we are still independent. We can be independent in how we deal with our staff — so far we have been. We are transient. We’re not here a lot.
Truthfully, in a business, you hear noises. I don’t know about my other colleagues, but I’m here, I do my work and I go home. I’m really not aware of a lot of things around me — sometimes not even my office. Today, I haven’t even been to my office, because I’ve been working. We’re not in one place. We’re not the boss. It’s a very difficult situation.
We don’t have unions, do we? The senators’ staff does not have unions. Administration does, but our staff does not have unions. Add to all of this that our staff doesn’t have security. Most contracts are one-year contracts, even if they’ve been here a long time. Not things we are proud of, but I’m just saying this is our reality.
In a situation like that, everything you said I thought was very legitimate, and we will certainly look at how we do it, but it is very different. It’s not an excuse for not doing all the things you said, but we have challenges.
You may not be able to respond today, and I respect that, but if you reflect upon this, how do we go about setting a safe workplace? It’s people we work with and people who work for us. Both need a safe place. I’m struggling with that. When you say you listen, it really hit me hard. When do I listen? I’m not here to listen. I could go on and on because I’m struggling with this. I’m wondering if you can help.
Ms. Lippel: Ironically, it’s not that different from professors who do research. I’m here. I was in my office for two hours today. I have 10 people working in my office, and I haven’t seen them for two weeks. I completely hear you. Universities have been grappling with sexual harassment, bullying and harassment, because on one side, it’s a huge institution, and on another side, when you have a research lab, it’s a mom-and-pop thing, so I completely understand what you’re looking at.
The way to think about it is to find someone or a series of someones who are these persons of confidence. Every senator cannot be the person one or two staff people can go to. It’s not functional, and that’s not your role. But you can have a person of confidence, like in the Belgian model and like what was adopted in 2015 in the National Assembly of Québec — somewhere you can go as a worker or as a senator. I presume that one day, somebody is going to harass a senator. That existed. The president of the workers’ compensation board of Quebec was the first woman president, and she was sexually harassed. She was on the radio telling us that she’s not protected from this. Anyone from a senator down to the person in your office working on a one-year contract has to have a safe place to talk.
Designing a safe place is not easy. It requires consultation. It requires consultation with unions, even though your people are perhaps not unionized. The unions can have recommendations of service providers who are external and who are perceived to be fair by all parties and can be recommended. It can be someone who has worked for the Senate in the past and who is known to the senators but who does not necessarily have a position. You can have more than one person. You can choose among different people. Gender is important.
Senator Jaffer: Can I stop you for a moment? What do you mean by a person of confidence? Not somebody who will decide their case? I should stop because my colleagues have questions. It’s to replace the whip, right, or the person in the party?
Ms. Lippel: I don’t know a lot about whips, so I won’t say that.
Senator Jaffer: It’s who people go to.
Ms. Lippel: Yes, but the person of confidence is a legal term that comes from the Belgian legislation, which has always been my favourite. It’s convoluted, but the Quebec legislation is based on the Belgian legislation. We didn’t put in this person of confidence. We have the Commission des normes du travail, which is now the CNESST, that deals with these cases, so you have somebody you can go see.
A person of confidence is the go-to person, which is not the Employee Assistance Program. That’s a different service. Universities now have these things. It’s the harassment person, the person responsible. It could be an ombudsman or ombudswoman. You have to craft the level of decision-making to fit your needs. They at least have to be somebody that is safe to talk to. Gender is important. You might want a man and a woman and have two.
[Translation]
Senator Moncion: My question is about training and about developing a culture that is free from harassment and violence. Do you have any comments on either of those topics?
Ms. Lippel: I think that a number of different types of training are required. The training I would provide for sexual harassment is different from the training for other forms of discriminatory harassment. It would also be different for psychological harassment. I am not a trainer, but I provided many union training sessions when the Quebec legislation came into force. Unions in Quebec are responsible, from a legal standpoint, for representing both the victims and the accused members of the union. The legislation was integrated into all of Quebec’s collective agreements.
In 2002, 2003, 2004 and 2005, a cultural change occurred. We are talking about thousands of people, as unionization accounts for 40 per cent, and customized training had to be planned. Longshoremen do not receive the same training as health workers.
I am a professor and a researcher. I have seen other training examples. I am sure, for instance, that Tomlinson provides training to its executives. That training is different from the one provided to colleagues. Those services found on the market may be more able to design customized training based on various needs.
Senator Moncion: I would like to come back to customized training. You are talking about various aspects. The federal government provided training to all members of Parliament and to their employees. I think that was the only training that presented all the aspects. Yet you seem to be saying that the training should perhaps be divided into different aspects. I did not see the training, so I am unable to comment on it, and you probably did not see it either. However, you seem to be telling us that the training should be divided.
Ms. Lippel: There should be a training program. Explaining your policy to people is one thing. Teaching them about a piece of legislation or a policy is another. I have been a law professor for 40 years, and I can tell you that people will fall asleep, but when the training is about the reality underlying the policy, people feel engaged.
This may be due to the Government of Ontario’s Bill 132, but at the University of Ottawa, training is provided at Christmas to help people consider various situations, such as ways to react when a subordinate says something. The training is provided online and is a bit simplistic, but it’s better than nothing. It is provided in the individual’s office.
It is much more useful to have informed training. For example, if you have tools such as public service surveys, we can look into the situation in the Senate, into what people would say. Are the questions good? There could be training where people react to the results for the entire public service and can start a dialogue. That approach is much more educational. It can be adapted to various units within the Senate, be it for administrative workers, senators or officials.
I know that you don’t have a lot of time, and we don’t either, but we are doing it. The goal is to get people talking to each other.
I was at the Social Sciences and Humanities Research Council when the results of that survey were published. The results were very good for some things and not so good for others. I was with all the employees when they learned about those results. The manager came in and said that it was determined that they have to talk to each other when it comes to certain themes.
The training is there. We have to see who is sitting on the committee, what must be done and who can provide us with information on the issue to ensure prevention. When I talk about training, that is also involved.
Senator Moncion: You mentioned earlier the federal government’s survey. Is that a survey on employment conditions?
Ms. Lippel: It is called the Public Service Employee Annual Survey Results.
The questions I was interested in concerned stress in the workplace. Those are validated questions. The survey does not simply ask, “Are you stressed at work?” The questions are the following: Is your demand high? Is the decisional latitude low? Those are questions that resonate for scientists around the world. We know that, if people answer yes to a certain number of questions, it’s bad for health. There are some questions on discriminatory harassment, some on sexual harassment and some on moral harassment.
Senator Moncion: In that survey?
Ms. Lippel: Yes. The questionnaire is on the Internet and can be downloaded. It refers to every unit of the Canadian government, from the smallest to the largest. Because your numbers are below 400, there is an issue of confidentiality. That survey contains specific tools to ensure that what is happening locally cannot be identified.
Statistics Canada is not a huge unit. It is merged with three or four others, which means that more specific information can be obtained without violating confidentiality.
[English]
The Deputy Chair: I appreciate that we started a little bit late, so I’m going to shave some time off of the next panel so we can finish here. I’d say we have five minutes. Senator Moncion, do you have more?
[Translation]
Senator Moncion: Yes. How should the cultural aspect be handled? Do you have any comments on how to also change the culture?
Ms. Lippel: I think that sexual harassment is different from discriminatory harassment, which is different from moral harassment. Tolerance for sexual harassment, as has been illustrated through the #MeToo movement, is a separate phenomenon.
I hope the culture is starting to change, and we must continue along that path. We mustn’t forget sexual harassment, but we also mustn’t forget all the other forms of harassment.
The rate of victimization involving psychological harassment, in Quebec, for both men and women is at 14.5 per cent, compared with 2.5 per cent of workers who are victims of sexual harassment. So it is nearly 10 times higher. In addition, women are victims of sexual and moral harassment more often than men.
The culture must be changed in each of those cases, and the best way to do that is to be in charge of our own situation. People must understand what is happening. When union culture was changed in Quebec with regard to psychological and sexual harassment, unions had to get involved in the management of cases, and that really helped get them mobilized. They were not comfortable, but they are better allies now when it comes to prevention. It costs them a fortune when they fail to manage situations, as they must defend the victim and the accused in horizontal cases.
Senator Moncion: Okay. Thank you.
[English]
The Deputy Chair: Professor Lippel, we’ve come to the end of our time. I want to thank you on behalf of the subcommittee and, indeed, all senators, for your terrific advice here today. It was crisp, a number of important things that we had not heard before and a number of things where you’ve reinforced or challenged what we heard before. We deeply appreciate your participation.
Ms. Lippel: My pleasure.
The Deputy Chair: For our second panel, I would like to welcome representatives of the Canadian Human Rights Commission, Monette Maillet, Deputy Executive Director and Senior General Counsel; Fiona Keith, Legal Counsel, Legal Services Division; and Marcella Daye, Senior Policy Advisor, Policy, Research and International Division.
Thank you very much for bringing your expertise and advice to the table. We look forward to your comments, and then we’ll get into questions. The floor is yours.
[Translation]
Monette Maillet, Deputy Executive Director and Senior General Counsel, Canadian Human Rights Commission: Good evening. It’s a great pleasure for me to have been invited to the Senate today. We are happy to share with you our perspective on human rights.
[English]
I’m very pleased to have with me today my colleagues from the commission, Fiona Keith and Marcella Daye. We bring you greetings from our chief commissioner. We are here today to offer our perspectives and insights as you update your policy. We hope that our collective legal and policy experience will help to inform your discussions. Before we turn to that discussion, I’d like to say just a few words of introduction.
First, we are encouraged by this work you are doing in revising your own internal policy at the same time that Parliament is engaged on Bill C-65. It is always heartening to see an employer take steps to ensure that its policies are aligned with the Canadian Human Rights Act and that they reflect the spirit of human rights in Canada. But the Senate is not only an employer. It is an esteemed part of our democracy. Because of this, we are especially encouraged that you have made a public commitment to “walk the talk” and to lead by example.
Second, we know you are undertaking this work while Bill C-65 proceeds. As you know, our chief commissioner has appeared before the House of Commons and again, just last week, before the Senate committee to speak about the bill. She was also accompanied by my colleagues who are here with me today.
The Canadian Human Rights Commission supports Bill C-65, and we were encouraged to see the amendments proposed by the Senate committee, which more fully integrate human rights. We ask that this subcommittee consider our remarks and our written submissions that we provided regarding Bill C-65.
Similarly we ask you to ensure that your own internal policies are in line with a human rights approach. We will be happy to discuss this more with you this evening.
Last, we want to applaud your commitment to require mandatory training for all senators, as well as for all supervisors, managers and staffers. The commission speaks often about the importance of education as the foundation for preventing discrimination and harassment. We see this as a commendable first step by the Senate, and we’re encouraged to see you moving to implement this without delay.
We will be pleased to answer any questions you may have and to further discuss your policy this evening. With that, we welcome any questions you may have, unless my colleagues have something they’d like to add.
The Deputy Chair: Anything to add? Okay. We’ll go to questions.
Senator Jaffer: Thank you very much for being here, and thank you for your patience as well.
You come from a fairly large institution in the sense of the Canadian Human Rights Commission, and so do we. You spoke about Bill C-65, and you know we are doing this harassment policy and doing the mandatory training. Then, there will be the regulations.
I am really concerned that we have raised expectations. We’re not there, but we’ve raised expectations. I was hoping that you could help us to say what the bridging is. All of these things take time.
I won’t say her name, but I was at an event recently where somebody from the military, a very well-known woman, said there’s no time to wait, because every day we wait, somebody’s life gets destroyed. A young person comes to an institution with all kinds of expectations, and then that person’s life is gone. There is no time to wait. I was told that culture takes time to change.
Now that I am on this path, I’m not ready to wait to have somebody else get hurt. So what is the bridging? I could go on and on, but you’ve heard enough. What is the bridging until we get all of these things in place?
Marcella Daye, Senior Policy Advisor, Policy, Research and International Division, Canadian Human Rights Commission: Thank you for the question, and thank you for having us here. I’ll start, and then my colleagues may have additional things to add.
Part of the good news is that you are starting that bridging with the commitment for training. You don’t need new legislation to do that, nor do you need the regulations. The quicker you can get that in place, the better.
From my experience in working with employers and reviewing policies and practices that seem to be addressing similar issues as this, there are some other practices that don’t necessarily need legislation or regulation behind them but that can be quite good. One of those is getting more detailed about the type of training that you are giving. Culture is hard to change. It does take time; there is no easy fix. However, there are types of training that can turboboost your culture change in a way that is more likely to result in the changes that you are seeking.
For example, passive training, where someone is either sitting and watching a webinar or sitting in a lecture room and listening to information, can certainly convey information, and we want good information to be conveyed. However, more worthwhile training that can create shifts in empathy and perception and possibly shifts in culture is based on interactive training that actually has things like scenarios and role plays that allow people to understand what the experience is of someone who is feeling harassed and help them work towards building solutions.
In addition to being training in raising awareness and providing knowledge, this can also provides skills training and skills practice that can then be practically put into place the very next day.
We encourage you, as you are embarking on this training initiative, to find robust training that engages interactively and in a meaningful way with the participants and the senators.
Senator Jaffer: Can I ask for a clarification. What do you mean by “practice”? I understand the skills training. I don’t know what training will be provided, but we will be going with parliamentary training and maybe something else. By “practice,” do you mean practice while we are being trained or after?
Ms. Daye: Some of the most effective training I have seen has been active training where people are role-playing scenarios in the training itself, with some guidance. It provides a structural environment in which to learn. You get to role play a scenario and then debrief that role play in order to better understand the dynamics that might happen in a possible harassment situation and what might be the pathways that make it worse in the moment and what might be the skills that could help make it better in the moment. When that is done in a classroom setting, with guidance and with knowledge building, then it allows people to actually practice the skills to both prevent harassment and to be able to deal with it effectively in the moment.
Senator Jaffer: When we do the training — and this has been on my mind a lot — do we do it with our peers or with a mixed group?
Ms. Daye: I would invite my colleagues to comment on this. The best ones I have seen are a mix.
Our chief commissioner often says it starts at the top, and you have 105 tops. You have all of the leaders in the Senate, and there is a certain benefit to having peer training amongst senators.
I am also aware that there has been some discussion around Bill C-65 about training for bystanders; that is, assisting people who may witness harassment or to whom somebody who has suffered harassment first discloses to. That bystander training can also be helpful amongst a peer group.
The peer groups exist on various levels, so a peer group with senators, a peer group with supervisors and management, a peer group with staff, but then it is important to mix these groups as well so that you can understand the perspectives and debrief amongst the power dynamics, which are so unique and stark here at the Senate. You have individuals who have a high degree of power and, as you said, sort of transient youth who are coming in to work at the Senate.
Senator McPhedran: Welcome, and thank you for your ongoing engagement in the various ways in which we are trying to make this a better place.
The basic question I have is about ideal circumstances. It picks up on what Senator Jaffer was addressing, which is the need for a catalyst to change culture.
I am not talking now about Bill C-65. I am talking exclusively about our workplace, the Senate, and the option for those who have experienced anything along that continuum of harassment, of being able to make a complaint out to the commission under the Canadian Human Rights Act. I know we discussed briefly maybe one of the only cases where there was an attempt to stop a Senate staff person from making a complaint under the Canadian Human Rights Act.
This is hypothetical. Ideally, is that an essential aspect of having an effective not only culture change but an ongoing set of mechanisms to sustain the culture change; in order words, a just workplace?
Fiona Keith, Legal Counsel, Legal Services Division, Canadian Human Rights Commission: I am speaking generally as a lawyer. I think having third party redress is important. The commission has always supported internal redress mechanisms, and they are supported throughout the public service. Having said that, I think having a third parties to go to, whether it be filing a labour grievance or a human rights complaint with the Canadian Human Rights Commission, are important checks and balances. It is also consistent with the approach that the victim or the target should be able to choose his, her or their preferred mechanism and may embark on more than one mechanism at a time.
Senator McPhedran: If I may continue my hypothetical: Let’s say that we do have a Senate staff person who has been aggrieved, reaches out and does make a complaint under the Canadian Human Rights Act. It would seem that there is a definite possibility that they would be declined under section 41, the discretion of your Chief Commissioner. Can you give us a sense of how often that happens? If I have time, I would like to move into a question of mediation, but I will stop with the Chief Commissioner’s discretion question.
Ms. Keith: Culture around enforcement mechanisms changes as well. We have talked a bit about culture here this evening, but there is also culture around the use of enforcement mechanisms. In recent years, particularly in the last three years, I can’t think of one instance where the commission has exercised its discretion to defer dealing with a harassment complaint to another decision maker. To put that in the positive, I can’t think of any exception to the commission deciding to deal with a harassment complaint. That is reflective of any number of factors but also including culture around enforcement mechanisms. The current thinking is that it is very important to have human rights-based enforcement mechanisms available to targets of harassment.
Ms. Maillet: Yes. I agree. In fact, at the commission we have prioritized harassment complaints, particularly sexual harassment complaints, where we find, for example, in a male-dominated industry, the women there may be more vulnerable, so we do prioritize these complaints to ensure that they get the support that they need.
The Deputy Chair: I think I have lost the plot, and I want to make sure I understand.
If the Senate of Canada was to establish for its employees and senators a third-party investigative process, in the case of a senator, I think the senators would have to sit in judgment, but in other cases there would be the other. We could do all of that, and somehow someone would be free to go to the Human Rights Commission and do it all over again? Is that what we are saying here? Is that the same in every business or institution? You are a stand-alone and you can decide where you want to insert yourselves based on people coming to you. Is that fair?
Ms. Keith: That is correct.
The Deputy Chair: Thank you.
Senator McPhedran: We have a vote.
The Deputy Chair: While we find out what the bells are, we will hear from Senator Moncion.
Senator Moncion: How often do complaints of harassment get to your level? There is a mechanism that goes on. How often does it go to you?
Ms. Keith: The federal human rights system has two parts: There is the Canadian Human Rights Commission, which is where we’re from, and there is the Canadian Human Rights Tribunal. People file complaints with the commission, which is where we work, and the commission has a look at those complaints, gathers some facts and decides whether or not that complaint should be sent to the Canadian Human Rights Tribunal. The tribunal is the adjudicative body that can actually award remedies if they find that a complaint has been substantiated.
In the last 10 years, we have received about 1,100 complaints of harassment.
Senator Moncion: In the last year?
Ms. Keith: In the last 10 years.
People often achieve success in resolving harassment issues through other mechanisms. They may decide to discontinue their complaint with the commission; they may decide not to file a complaint or not to proceed. Any number of things can happen, but the law provides that people can have concurrent redress through the Canadian Human Rights Commission right now.
Senator Moncion: So 1,100 over 10 years is not a lot. I will rephrase that. It is not a lot if you compare it to the number of things we are hearing.
Ms. Keith: I think we would agree that the number of complaints that the commission receives is probably not representative of the incidents of harassment in federally regulated workplaces.
Senator Moncion: Thank you. That is what I meant. With what we hear, 1,100 is a lot, but it is not a lot given the size and scope of everything.
The Deputy Chair: Sorry, we had a mix up. We thought it was an hour bell but it is not. It is a half-hour bell. The vote is at 7:18 p.m. Do you want to go for another 10 minutes?
Hon. Senators: Agreed.
Ms. Daye: As we move forward, we are available outside of this room to have conversations if you have questions and the time is cut short.
The Deputy Chair: Thank you.
Senator McPhedran: What I would like to move to next is, again, a hypothetical. The staffer decides to make a complaint. The commission decides to accept the complaint. There is the investigation process, and typically — correct me if I’m wrong — they end up in mediation. That is often the scenario, and the record disappears. This is something that I am struggling with in this institution, namely, the extent to which secrecy shrouds processes, numbers and what actually happened. Was there a settlement? Did it involve non-disclosure? What has actually happened here?
The only way I have been able to find out anything is through this confidential line that I set up. What is now happening is I’m hearing about mediations or facilitated discussions and, in effect, settlements, but it has all disappeared. To some extent, anywhere where you have mediation in the way they are typically conducted, that is what happens. For example, the understandable reaction my colleague has had was saying that is not much, but a lot of that has to do with what has disappeared from the record to really understand the extent.
To your knowledge, is there a way to capture more accurate profiling of what actually has gone on and still allow people the choice, if it is a genuine choice, to go into a mediation environment where they may well agree to no longer have anything on the record?
Ms. Daye: You raise a question that is a question for many employers and many organizations. It is especially timely now when we have seen the emergence of the #MeToo movement, which has brought many complaints that were hidden into the light. The concerns that you raise are on everyone’s minds.
What I will say about the commission’s own process is that we successfully mediate about a third of our harassment complaints. Those mediations are completely voluntary and in many cases they are preferred. They are the preferred solution for the complainant for many reasons, including that they don’t want to have the issue drawn out, that they can find a quicker, easier solution that takes less time; and that also gives them the resolution that they need in order to move forward with their life.
There is a kind of empowerment that can happen through a successful mediation, but there is also data loss. One of our recommendations to you, as you revise your policy, would be that you think about how to capture that data and how to capture that data in a way that it provides an indicator of what might need attention in the workplace, but that it is disassociated and anonymous in a way that still protects the confidentiality of people who move through it.
The lack of ability to gather that data and to use that data for robust analysis about what equality looks like in your workplace will be a big loss if it’s not put into the policy. That kind of requirement may find its way into the regulations, but it may not. However, it is certainly within your purview to put it strongly into the policy and to make it very clear to those who are seeking these informal resolutions that data that captures the nature of the complaint and helps you analyze the problem and find solutions on systemic issues is part of the process. Does that help?
Senator McPhedran: Thank you very much.
The Deputy Chair: Colleagues, I don’t want to play chicken anymore with the clock.
I want to thank you very much. I apologize for the circumstances today and would ask that if we wanted to call you back or maybe consult through a video conference or something throughout the summer, would you consider helping us out some more?
Ms. Maillet: Of course. We will be available.
The Deputy Chair: Thank you so much.
(The committee adjourned.)