Proceeding of the Standing Senate Committee on
Issue No. 31 - Evidence - Meeting of June 11, 2018
OTTAWA, Monday, June 11, 2018
The Standing Senate Committee on Human Rights, to which was referred Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, met this day at 3:30 p.m. to give consideration to the bill.
Senator Wanda Elaine Thomas Bernard (Chair) in the chair.
The Chair: Good afternoon. Before we begin this meeting, I would like all senators to introduce themselves. We will begin with a deputy chair.
Senator Cordy: Jane Cordy, a senator from Nova Scotia.
Senator Boyer: Yvonne Boyer from Ontario.
Senator Hartling: Nancy Hartling from New Brunswick.
Senator Martin: Yonah Martin from British Columbia. Welcome.
The Chair: I’m Wanda Thomas Bernard from Nova Scotia, chair of the committee.
Today, we begin our study of Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1.
I would like to take this opportunity to encourage senators to consult the law clerk’s office should they plan to move any amendments on this bill.
For our first panel today, we are pleased to welcome, from the Senate of Canada, Diane McCullagh, Chief Human Resources Officer; Diane Blais, Interim Lead, Human Resources Partnerships; and Vanessa Bastos, Lead, People, Culture and Inclusion.
Ms. McCullagh, you have the floor.
Diane McCullagh, Chief Human Resources Officer, Senate of Canada: Good afternoon, and thank you for inviting me to speak with you today. As you may or may not be aware, I am new to the Senate family. I can assure you that the past three weeks have been among the most interesting of my professional career, with many firsts, including today’s appearance in front of you.
As stated earlier, I am accompanied by Diane Blais and Vanessa Bastos, the latter of whom also has only been with the Senate for a short time. Ms. Blais and Ms. Bastos both support me in the administration of these policies on an operational basis.
As Chief Human Resources Officer, I’m responsible for the oversight and operations of the HR Directorate, including providing advice on sensitive issues pertaining to the Senate and senators’ offices. The HR directorate administers and monitors the Senate policy on the prevention and resolution of harassment in the workplace, and the Senate policy on occupational health and safety, which fall under Bill C-65.
Like the House of Commons and the Library of Parliament, the Senate is a separate employer governed by the Parliamentary Employment and Staff Relations Act. The Senate administration is composed of 400 employees, as well as senators and senators’ staff, representing an additional 350 individuals.
In June 2009, the Senate adopted its policy on the prevention and resolution of harassment in the workplace. This policy applies to all persons in the Senate workplace, including senators, staff of senators, employees of the Senate administration, contractors and their staff, as well as volunteers. The Senate instituted this policy to ensure that it provides a safe and healthy work environment for all employees and parties engaged with the Senate and to prevent harassment by insisting on respectful treatment for all, promoting awareness and encouraging open communication.
This policy is anchored on three important principles: procedural fairness, which ensures that all parties have a right to be informed, to be heard and to obtain an impartial decision; timeliness, which ensures that complaints are dealt with promptly; and confidentiality, which seeks to protect the privacy and reputation of the parties involved at all stages of the process.
Approximately a year ago, the Senate tasked an advisory working group of CIBA with the mandate of reviewing its policy on harassment to ensure it was aligned with best practices and responded effectively to the concerns and needs of the organization.
A subsequent restructure of the Senate committees occurred in November 2017, which resulted in the creation of the Subcommittee of Human Resources, which received approval on December 7, 2017, to review the harassment policy. In addition, the subcommittee was also tasked to carry on with the advisory working group’s review of the policy to align it with market best practices, examine how changes considered in Bill C-65 should effectively be integrated in a revised policy and ensure that the policy took into account the recent societal events related to the #MeToo movement to be certain that these concerns were reflected in the revised policy.
Over the past few months, the Senate, through the work of the subcommittee, has undertaken a series of consultations with experts and employees to gather pertinent insights on how its policy could be enhanced through this review process. These consultations will continue until the end of June and are expected to inform the recommendations the subcommittee will submit to CIBA by the end of September.
The Senate policy on the prevention and resolution of harassment in the workplace is posted on the Senate Intrasen and available to all. The policy provides a clear definition of what constitutes harassment within the context of the Senate workplace. It also identifies a process to resolve potential claims of harassment and defines the roles and responsibility of various stakeholders in adhering to the principles of the policy. Finally, it outlines a mechanism for addressing claims, depending on the parties involved, such as whether they are part of the Senate administration or it involves a senator or their staff.
When a complaint is first raised, it is submitted to the Chief Human Resources Officer for review. In this capacity, I will examine it to determine whether its nature meets the definition of harassment. I will then work with the relevant parties within an advisory capacity.
Our practice has been to engage external investigators to conduct fair, impartial and discreet investigations. They provide a final report that is reviewed by the CHRO, who forwards it to the Clerk of the Senate or the government and opposition whips, as the case may be, to determine appropriate action. It is important to note that mediation is available to all parties before and at any time during the investigation process.
As the Senate is a small organization, an agreement with the House of Commons was signed in 2016 in order for employees of the Senate administration and senators’ staff to access mediation services through their Finding Solutions Together Program. The renewal of this agreement is currently ongoing.
Despite the visibility of this topic in the media, the Senate has not been faced with any complaints this past fiscal year. The Senate, however, did receive three complaints from 2014 to early 2017, which were appropriately resolved through the established process.
In 2015, the Senate delivered targeted training to its executive and middle management members to apprise them of their responsibilities under the policy. Around the same time, HR employees also participated in such training to ensure that all members of the team were well equipped to recognize potential allegations of harassment and ensure that they could effectively redirect these claims to the appropriate HR specialists.
In January 2017, HR participated in an orientation session for senators’ staff, which included a component dealing directly with the Senate policy on the prevention and resolution of harassment in the workplace. All participants were involved in the policy and procedures.
Most recently, the Subcommittee on Human Resources disseminated a communiqué on the policy to all senators and Senate employees as an interim measure to make sure everyone was aware of the existence of the policy and the mechanism in place to report potential complaints.
Following the submission of the report of the Human Resources Subcommittee, the HR Directorate will be responsible for reviewing the recommendations, making relevant policy changes, communicating these changes, as well as planning the required training for all employees, including senators and their staff.
Our efforts to ensure a workplace free of harassment and sexual violence are ongoing. The updating of our policies and processes will be a solid step in the right direction in ensuring our employees are able to work in a healthy work environment.
Ms. Blais, Ms. Bastos and I will do our best to answer any questions you may have. Thank you.
The Chair: Thank you very much for your testimony. We have a list of questioners. We will start with Senator Hartling, the sponsor of this bill in the Senate.
Senator Hartling: Thank you very much for your presentation, and welcome to the Senate. I know it is probably a bit of a rush getting in here and trying to get up to speed.
I have a question about onboarding. What is the process for informing new staff and senators about policies such as sexual harassment and how to do deal with those things when they get to the new job?
Vanessa Bastos, Lead, People, Culture and Inclusion, Senate of Canada: It will be my pleasure to answer your question, senator. Currently, we are in the process of reviewing our onboarding program. We do have a couple of checklists that will be part of what a manager receives to ensure that their employees are informed of all of the policies that employees are subject to and, as part of that, the harassment policy would be one of the documents that they would have to review as part of that process.
Our goal is to ensure that we do that on a more systematic basis in the future, so we are reviewing the onboarding process to ensure that it is integrated in the onboarding of every employee across the Senate.
Senator Hartling: Would there be a check to make sure the employee has seen it?
Ms. Bastos: That’s it, exactly. That’s the intent.
Senator Hartling: Okay. Thank you.
Senator Cordy: Welcome to our committee. You are getting a baptism by fire in your first month on the job. Thank you for being brave enough to be here.
When I read the bill, I was very pleased that the minister brought this bill in. With all that is happening and more publicity, which is a positive thing, this bill will help. But legislation will not solve all the problems. We need to have everything in place.
I’ve heard concerns mentioned, when I was on the Internal Economy Committee, about timeliness, and you spoke about that. It seems that people who put in a concern or a complaint are waiting for what I would consider an unreasonable amount of time. I know you are new on the job. If you have a problem and you finally — because you would weigh it back and forth in your head for a significant amount of time before you would actually have the courage to bring it forward — decide to bring it forward, and then it’s a year or two years later and it has not been solved to anyone’s satisfaction, you have not even heard back — and this is not just for Human Resources but also cases referred to the Ethics Commissioner — how are you going to deal with the timeliness so people are not waiting for a year or longer to get a resolution to their concerns?
Diane Blais, Interim Lead, Human Resources Partnerships, Senate of Canada: The policy provides some timelines in terms of resolution. Once we are informed and there is a formal complaint filed, it’s a process that takes between four and six months to go from the complaint to the end of the final report. It’s within a year. The policy will allow anybody to file a complaint within 12 months following the alleged incident and, once it is brought to our attention, we act upon information being shared with us.
Sometimes we have employees that will come to see us and just want to share the information. They want to get some advice on how to address a situation and get some coaching, and that’s what I usually offer in order for them to deal with the situation and address it with the other party that has been involved in the situation. When it is serious and they really want to move forward and file a complaint, the process is there to support them. My role is that I usually accompany them in the process, explain the process and explain the options.
As Diane mentioned in her speaking notes, there is always a possibility of using mediation services to resolve the issue. Our approach is to try and resolve the incident at the lowest level possible. If you can address it with mediation rather than a formal complaint, we would rather recommend that, but sometimes the complainant would prefer to choose the formal complaint and move it along the process.
My role would be to inform them about the various options, support them in the process and answer their questions as they go through the process. But it takes between four and six months because the process itself may involve more than the complainant and the respondent. Sometimes there are a number of witnesses that need to be interviewed. If the complaint is filed during the summertime and people are on vacation, it may add on the timelines and that may affect the timelines.
We try to do it as quickly as possible because it’s difficult for the complainant and the respondent, and we understand that. We are there to support them as they go through the process, and we try to address the situation more diligently so they are not left on the sides dealing with the stress around filing a complaint.
That’s basically what I do in my role. I’m a labour relations advisor in my other life, but that’s basically what I do. Did that answer your question?
Ms. McCullagh: Three weeks into the Senate, I’m less familiar with the processes here. However, having said that, I do have a significant number of years in the human resources field, and I understand that in delicate situations where an employee is not feeling safe in their work environment, that it has probably taken them a great deal of time to even bring the situation forward to a supervisor, a colleague or to a human resources specialist. So timeliness is of the essence.
There are options available depending on the degree of severity of the issue at hand, depending on the willingness of the individual to share pertinent details, signing testimony and that kind of thing. What is key is that the employee absolutely needs to feel supported and that he or she is being listened to.
We explain from the get-go and manage expectations moving through so that they don’t expect a solution to come within a week or two if we believe it will take longer, if we have to include an external investigator and depending on the number of witnesses. But as long as we manage the expectations of all parties going through the process, it helps with the timeliness issue.
We have to take it seriously and exercise due diligence in all of these investigations, and sometimes that takes a lot of time, and sometimes it can be done quickly. It is a case-by-case situation, but it is about prioritizing those cases as they move forward and it is really about that.
Senator Cordy: We have two distinct staff members in the Senate. We have those who actually work for the Senate, whether it’s IT or Finance or Human Resources, and then we have staffers who work for senators. If you are working for the Senate as a whole — and it’s never pleasant to go through this — perhaps your office atmosphere is larger and you might have 30 employees, but if you are working for a senator, it’s very often two staff members, maybe three, which makes it very difficult to stay in that situation and work. How do you deal with that as compared to somebody who is working in an office environment of 30 or more people?
If this bill passes — and it passed the House of Commons unanimously so I’m hoping it passes here — do we have to go through an education program? Should we come forward with a program? I know that we do some of that now, but should we maybe ramp it up a bit so people really are familiar with what the stages are and how they should progress if they want to file a complaint?
Ms. Bastos: I’ll be happy to address your question. On the first point, with respect to the individuals who work in senators’ offices, we recognize it is extremely delicate when you have such small environments. It is difficult for individuals to be a part, to continue to carry on with duties and not feel pressured. To that extent, the administration will look at what alternatives are available, sometimes to move the employee somewhere else across the organization, if it’s feasible, or sometimes provide leave with pay, depending on the circumstance. But again, we look at each individual circumstance to try and determine the most appropriate way of resolving the issue.
In terms of preparing, I would say the organization for Bill C-65 and its implications, absolutely. This is one of the things we are considering. The importance of creating an environment that is healthy and that helps protect individuals from harassment and violence in the workplace is about education and understanding their rights under the policy. It is about being knowledgeable about their duties and responsibilities in the context of that bill and that policy and ensuring they understand the extent to which they contribute to creating the type of environment we want to see across the Senate. Training will be part of that, as well as education and communication on a regular basis. It is about ensuring that, from a compliance standpoint, we do our due diligence to address any issues that do arise.
Senator Boyer: Welcome. Thank you for coming today.
I have two questions. The first one deals with retaliation and what may be in place when somebody does complain. How could they be assured that there will not be any retaliation if they do complain? Is there something in place now?
Ms. Blais: When they come forward and come for information in relation to that, we reassure them that there shouldn’t be any retaliation. It’s their right to actually come forward if something happens, and there should not be any retaliation. We confirm that to them.
Of course, in small offices on the senators’ side, obviously, those offices are small and, with two or three people, it certainly was a concern to employees who came forward, based on my past experience. Again, we support them. We offer various options, and we will support them no matter what happens. Our role in HR is to make sure that situations are being addressed diligently and that no retaliation is being imposed.
Senator Boyer: Also, with the person that is being complained about, would that be stated clearly and be part of the policies that retaliation is defined as this, this, this and this, whether now or in the future?
Ms. Blais: Support is offered to both the complainant and the respondent. It’s not easy for either of those two parties. So the same support is offered. It’s very important that, as we walk them through the process, they understand their rights, and our role in HR is to make sure that we guide them through the process and are there to answer their questions and support them in what they are going through.
Senator Boyer: I have one more question. It’s about culturally relevant services. If we have, say, Indigenous staff members who have come to you, do you have access to elders or somebody who would be able to assist them? You talked about mediation services. Would elders be engaged for that? Would they be able to access something that would be culturally relevant to them?
Ms. Blais: That’s something we should consider as we review the policy, for sure. They may have specific needs, and we certainly will look into that as we review the policy and work with the recommendations from the subcommittee.
Senator Pate: Thank you to all of you for being here and for the work you do on behalf of all of us here in the broad Senate environment.
I’m presuming you’ve seen the recommendations that have come from the Canadian Human Rights Commission about some improvements to the bill that could be made to better protect Senate employees. I’m curious as to what your perspectives are on those various recommendations in terms of some amendments to the bill?
Ms. McCullagh: I have read them, and I’ve read a lot of material in the last three weeks, and I’m not in a position to assess what my position would be on those at this point. But it’s certainly some information I could get to you in short order, in writing.
Ms. Bastos: I would just say that, based on the proposed changes to the bill, I think it seems very much in line with elements and principles of the policy we currently have in place. I think the enhancements seem to be aligned, in my view, with the work that the Subcommittee on Human Resources is contemplating to look at how we can further enhance the bill. It seems consistent with the direction I think we’ll be taking. If anything, we’re very pleased to see some of the recommendations.
Senator Pate: Would I be correct — I don’t want to put words in anybody’s mouth — that the amendments suggested by the Canadian Human Rights Commission would actually further advance the positions that you’ve put forth?
Ms. Blais: I would say so. The policy is already quite thorough, and I think it’s just going to nurture the process and have something that is broader. It will be broader and will address all kinds of situations right now. I think it’s just positive, at this point in time. It’s truly positive.
Senator Pate: In the area in which I used to work, and I worked in the prisons, for anybody who isn’t aware, often there would be situations where prison staff, Correctional Service Canada employees, might engage in relationships, sometimes sexual, sometimes otherwise, with prisoners. Those prisoners might sometimes define those as consensual. Certainly, in many parts of them, they may not define them that way somewhere down the track. One of my observations coming to the Senate, over the past year and a half, is that there are a number of those sorts of situations that arise between senators and Senate staff.
One of issues that I’m interested in, and Senator Bernard raised it in her speech in the Senate, is the whole issue of bystanders. As someone who has observed some of this, what is the role, do you think, of another senator or Senate staff when they see something that often looks very much like a power imbalance, smells like a power imbalance and, ultimately, is identified as having been a situation that, if not defined as harassment, certainly borders on that in terms of individuals engaging in relationships with employees who clearly don’t have the same level of privilege as senators? Do you have any comments on that or, if you are doing training, how you plan to deal with those sorts of issues?
Ms. McCullagh: Certainly the power imbalance issue is not uncommon. You’ve described a fairly specific situation. You see something; you say something. If you are comfortable going to your supervisor about something you’ve witnessed or are concerned about or are suspecting, by all means, have that conversation. If you are uncomfortable with that level, come to someone in Human Resources and have a confidential conversation with one of the members of my team on that front as well. I can’t fix it if I don’t know it’s broken. It’s really about starting that conversation.
The people involved, who are perhaps not in a position of power, are perhaps very concerned about even reporting it or saying anything. So, yes, there is a power imbalance. I would highly encourage those who are witnessing that to move forward. We can’t force anybody to do that, but I would highly encourage them. There is a safe place to that have discussion, and that would be with our team, for sure, but it should also be with their supervisor if they have a strong relationship on that front as well.
Senator Pate: I have actually talked to some employees who see it as complimentary. They actually don’t perceive some of the overtures being made to them as, in any way, inappropriate. I’m just curious as to what kind of educational efforts you are doing or would be able to do to ensure that new staff know what the implications are if they respond to certain of those types of behaviours in ways that appear to be consensual.
Ms. Bastos: The first and most important thing is to actually educate people on a definition of harassment. Oftentimes it might be due to a lack of understanding of that definition or a lack of understanding how situations they may be experiencing might fit within that construct. For us, it’s really important that we do provide employees with a clear understanding of the definition, the policy and the obligations and duties that we each have in the context of our employment to be aware when potential harassment could be occurring and to report it.
It’s not because you are not the party that is directly affected or impacted that you can actually be exculpated of that responsibility. You still have a duty to protect and ensure that we uphold a work environment that is positive and healthy for everyone. There would be an expectation that, through the training we are anticipating delivering, we actually address those components to ensure that individuals are fully aware and cognizant of that definition and can then take that in context to be able to assess how particular situations they are living fall within the spectrum of harassment and can deal with it appropriately, if necessary.
Senator Andreychuk: I have just a clarification of Senator Pate’s comment. She was referring to some suggested amendments to the bill, if I understand. I don’t want to put words in her mouth. Her question was whether you believe that those should be amendments put into Bill C-65, or are you saying you think there’s sufficient in Bill C-65 and other policies so that they’re not necessary? I want your clarification.
Ms. McCullagh: Instinctively, I want to say we would be waiting for recommendations from the subcommittee, but I believe our legal colleagues would be in a better position to answer that properly at this point. I’m not sure we’re positioned well enough to answer that in any further depth.
Senator Andreychuk: We’re not sure whether the amendments are necessary for Bill C-65. Okay.
The Chair: Could we request a written response to that question? Thank you.
Senator Andreychuk: I want to go back to the Senate. Having been here for many years, we seem to always be on the cusp of putting a policy in. You’re new; you’re trying; you’re assessing. Those are words I often hear here. What is the time frame for seeing a completed process so we’re all on the same page? Part of the problem is we’ve had bits and pieces, and while it’s an evolution, always, because expectations change and society changes, it seems to me we’ve never been able to go somewhere and see the whole process. I’ve been directed here and there. When will we get this omnibus policy that we’re all going to understand and know and put our tick marks to? I want a time frame.
Ms. Bastos: I could address that, senator. As I mentioned — and I believe Dianne mentioned it as well in her opening remarks — the Subcommittee on Human Resources has already undertaken some of the work to review the policy.
Currently we’re working jointly with them to conduct consultations with members of the Senate, employees and management as well as employees in the senators’ working group, as well as experts in the matter. The intent is that at the conclusion of these consultations, we’ll have some further guidance in terms of the areas of our existing policy that we should be amending, and with that we’ll have a clear mandate to look at how we will revamp the policy and deliver, in the fall, a policy that is complete and crisp and addresses the various concerns that have been raised during those consultations.
The intent at that time will be to have a clear action plan to implement all of the supporting mechanisms that we want to bring along to the bill, including training, communication and all of the other activities that we mentioned earlier.
Senator Andreychuk: Can you define “fall”?
Ms. Bastos: At this point, I would refrain from giving you an exact date, but I can certainly say in the fall that’s what we’re targeting.
Senator Andreychuk: Are we talking September or November?
Ms. Bastos: I would not pronounce myself, if you don’t mind, senator.
Senator Andreychuk: I’m still asking. I hope I’m further ahead.
One of the issues is that we did put in a section of the Conflict of Interest Code and changed it to the Ethics and Conflict of Interest Code. There certainly is confusion because we’re not yet at a full policy. The tendency is, should it involve a senator, to go to the Ethics and Conflict of Interest, but it is not their job — nor was the intent, nor the words of section 7 — to be a replacement for a harassment policy with responsibilities within what you’re going to tell me we’re going to have in the fall.
Has there been any thought given on communications and content to clearly delineate what section 7 in the Ethics and Conflict of Interest Code is intended for? It is the most severe behaviour that impacts the Senate, the institution, other senators, and it isn’t to supplant what would be the issues under the labour codes. If it’s not been undertaken, I’m suggesting that look should be taken. You can get back to me on that, but I think it’s something that fundamentally the Senate will have to answer. The tendency is to reach out to what I think has to be dealt with within Internal Economy’s responsibility.
Ms. Bastos: Absolutely, senator. At this point, I would say, to be fair, I don’t have a lot of awareness of the Ethics Committee and its role in that respect. That is something I will be looking into, and we’ll certainly be coming back here confirming how we intend to address that in the context of the policy. The point you’re making is right. The policy exists for a reason, and there’s a mechanism to address those concerns within the confines of the policy. If there’s confusion, that’s something we’ll look to address and ensure that it marries well with some of the other guideline policies that we have in place.
Senator Andreychuk: I have put it on the record. It’s important we understand the various bodies we have within the Senate.
I want to go to Bill C-65 and the definition of harassment and violence. How do any of you look at any action, conduct or comment, including of a sexual nature — that part, so far I like — that can reasonably be expected to cause offence, humiliation or other physical or psychological injury or illness to an employee, including any prescribed action, conduct or comment, and then it goes on to the previous bill.
The hardest thing is to determine humiliation and psychological injury. Having been in the field of family law, what offends one person may not offend another. It may stem from your background or culture. What tools will be applied and what’s the reasonableness test here? There’s always, “Well, I didn’t mean it that way,” and, “Well, this is how I took it.” I think that will be the biggest struggle in this bill. Have you anything to say to us about that? Because that will be the crux of the issue. We’ve seen that.
Ms. Bastos: Absolutely, senator. First and foremost, I would like to reiterate that every case of a harassment complaint is unique. You have to look at it in context to ensure that you take into account the experience of the parties that are involved, that you also understand the context in which the allegations have taken place, and that those factors are going to probably weigh into how you assess and determine whether or not harassment has taken place.
In terms of a definition, it is broad enough to accommodate different types of incidents. But, again, we can’t use a broad brush to automatically identify what does and doesn’t constitute harassment. You have to look at it in the context for the particular situation that you’re looking at and the particular individuals involved in the matter to determine how you’re going to apply the definition, to the extent the definition is going to be broad enough to address the concerns at hand.
Senator Andreychuk: Certainly in the Senate, and in other areas where I’ve worked, we have had difficulty with this. In the courts, the reasonable standard — not always, but usually — is an objective standard. Of course, we’re so diverse in our society. That hasn’t been as helpful.
In the Senate, we’ve had those people who exercised the judgment to determine whether it’s reasonable or not being faulted later as they didn’t represent what I believed and what I thought. Not only did they not get the answer they wanted, it just entrenched them more in saying this system isn’t here to help me.
Have you given any thought as to what officers or groups — I’m not sure what terms you’re going to use in the fall — will be dealing with this, and how do you determine those issues? How do you de-escalate? I appreciate you’re going to do the mediation, but if mediation fails, that’s where it gets very difficult. The tendency is to go to the courts, but that standard in the courts, whether it’s assault or what have you, is a high level of proof, beyond a reasonable doubt. In administrative matters, it’s a reasonableness test, which is not quite the same. So how are we going to handle that? Has the committee thought about this? Have you thought about it? If not, that’s another one of these “I’ll talk to you later,” because it’s fundamental to the issue that people feel they were heard properly and that they got some measure of justice.
Ms. Bastos: If I could say, senator — and I’ll invite my colleagues to add — it’s often difficult when you’re dealing with issues of harassment to get to a juncture where every party feels that the outcome is satisfactory. Often, it’s very personal issues, it’s perceptual and contextual, and that makes it difficult for individuals to be fully satisfied with the outcome.
You’re trying as best as you can to look for and focus on the objective facts the situation presents. On the basis of that determination, you’re trying to make an assessment that is fair and have a process that is procedurally consistent for all parties involved. Out of that, you’re attempting to make the best informed decision in terms of the appropriate course of action, taking into account various factors.
You raised a very fair and important consideration that we’ll have to look at and not one we have fully resolved at this point.
Senator Andreychuk: It’s a work-in-progress.
The Chair: I have a supplementary to Senator Andreychuk’s line of questioning.
Under the definitions of harassment and violence, it’s clear that sexual violence is included there, but I’m wondering about issues of homophobia, ableism and racism. When those types of complaints come forward, especially when someone is in a position of power, have those issues been addressed? How do you plan to take those up, particularly in the training?
Ms. Bastos: Senator, I’m happy to answer. Again, we’re just at a preliminary stage — unfortunately, being fairly new to the Senate — and awaiting the work the Subcommittee on HR is doing with respect to revisiting the policy and looking specifically at how we want to integrate provisions of the bill into our future policy. Those will be factors we’ll have to look at.
At this stage, I wouldn’t be able to pronounce how we intend to address that. We know those are concerns and factors we need to look into and use as a lens to strengthen whatever policies are in place to address the needs of those various groups.
The Chair: I know the working group did express concerns that there’s no mention of the measures of resolution. For example, what would be the repercussions, particularly given the privileges that senators have?
Ms. McCullagh: I’ve heard the term “parliamentary privilege” in the three weeks I’ve been here. My understanding is that parliamentary privilege doesn’t shield senators from their obligations and responsibilities as employers. We’ll have to figure that out moving forward in terms of what it means and looks like.
It’s really about education. You said that perhaps people in positions of authority, when it comes to homophobia and that type of thing — it’s really about understanding the fair and harassment-free workplace and making sure they understand their responsibilities vis-à-vis the issues you mentioned. Then we’ll have to wait for the recommendations of the subcommittee on how much further we can go. We will be responding, for sure.
Senator Andreychuk: Parliamentary privilege is defined; it’s known. It’s got history to it — the Westminster model. You were not using it that way; you were talking about the power imbalance.
The Chair: Power and privilege, yes.
Senator Andreychuk: Until you get here and become a senator, you don’t understand how privileged being a parliamentarian is, but it also imbalances people who come to you. They often say, “But you’ve got the power to do things.” That’s the way I think you were using it, their status as opposed to the parliamentary privilege concept, which is well-defined and has to do with the workings of the chamber, basically. I just wanted that known, because I thought your point was valid, and I don’t want to get it lost in parliamentary privilege issues that are procedural issues.
The Chair: Yes. Thank you.
Senator Martin: Thank you for your presentation today, Ms. McCullagh, and to the others who are answering some of my colleagues’ questions.
My question follows up some of the questions that I have heard. In trying to organize all of the information you shared in your summary, Ms. McCullagh, in your statement, you talked about all the work the Senate has done since 2015. I recall those efforts being undertaken. We have, as a group and caucus, reviewed the documents and different policies, and we’ve attempted to discuss among ourselves, just to ensure we all understand our duties and responsibilities to our staff, because we are all employers to our staff.
I was trying to understand how Bill C-65, once adopted, will interact, influence, supplement and complement what we already have.
How would the new duties of employers in relation to workplace harassment and violence proposed by Bill C-65 interact with the protection of parliamentary privilege? Also, our programs and processes we have and that the subcommittee is reviewing — how is that being done in the context of Bill C-65, and will we, as senators and staff, be provided workshops to fully understand how all of this will work together?
This bill attempts to be very comprehensive. It’s to address the gaps. I’m hoping to hear from you assurances that we will be moving toward that, with so much that has already been done on the Senate side and the review that is taking place. I know you’re new to your position, but I’m hoping to understand how all this will work together. It’s a big question.
Ms. McCullagh: It’s a big question. Unfortunately, it’s one to which I’m not sure I have a fulsome answer at this time. I know we are anxiously awaiting the results from the work of the Human Resources Subcommittee, and training and communication will be key with rolling anything out — any of the changes moving forward.
If the changes are made, great, but if we don’t communicate what those represent and educate our population, it becomes a moot point. That is going to be a huge factor in how we go about communicating to all levels and educating them — and in short order, I might add. It’s not about waiting very long. We would like to implement and move forward as quickly as possible, while exercising our due diligence and making sure we are doing it correctly.
I don’t have further information for you until I receive additional information from the Human Resources Subcommittee, unless you have anything to add at that point. That’s as far as I can go at this time, unfortunately.
Senator Martin: Okay.
I know you’re waiting for our report for your review, and there will be some time between Royal Assent and the actual implementation, but in your preliminary review, do you see this bill having the effect of streamlining all of the processes and programs we already have? Sometimes more isn’t better. It seems like we have taken quite a few steps as an institution. In some ways, this bill seems to be catching up to what we are already doing. I’m hoping this bill will help streamline and complement what we already have, because there are already things in place. I hope those are aligned. I wanted to know, within your preliminary review, if that’s what you predict and foresee.
Ms. McCullagh: I would agree with that statement. Again, it is a preliminary review. I would have more work and conversations to have with respect to that.
The purpose of all this work, whether it’s a harassment policy or any type of policy, would be to have it be streamlined. The simpler and more straightforward, the better. It will be easier to follow and adhere to in that context as well. That is certainly our hope, and that is my understanding, based on the work I have looked at thus far.
Senator Hartling: Thank you very much for all your answers. Being so new, you did very well.
Just to conclude, the power imbalances certainly are there. I know we have laws, and that brings change, but a cultural shift has to come. I heard something in Australia that made me think, “No, that’s just ridiculous,” where they actually forbid anybody to have a relationship with another person in their parliament. That’s kind of going too far. But for what you’re doing and building on, I think the bill is going to marry very well with some of the policies the Senate will have, but in terms of building capacity, education, trust and helping us to move forward, have you seen or do you know of places, programs or examples of how that happened that made the cultural shift move forward?
Ms. McCullagh: When trying to change the culture, whether it’s regarding a harassment policy or from an ethics perspective, the example shared earlier with respect to the relationships within a working environment can certainly start with a power imbalance. If it is consensual all the way through, then you end up with a conflict of interest scenario, potentially, so we have to take a look at those issues moving forward as well.
Shifting the culture doesn’t happen overnight, at least in my experience, and I’ve been in human resources for 29 years. These things can take a lot of time. It’s a marathon; it’s not a sprint. It certainly starts at the top. We have to lead by example from a leadership perspective. If we don’t, then don’t expect anyone to follow. We have to be able to inspire our colleagues and team members to be able to behave in appropriate manners in the workplace. That starts with us as a leadership team.
There are additional details as to how we would move forward. Communication is key as well, specifically communication using multiple prongs. It’s not just constantly sending out emails. Different people react to different mechanisms, from a communication perspective, so it’s making sure those are in place.
It’s having an integrated approach to that culture change that will essentially see it through. It’s also about being patient and not expecting it to happen within the first six months of the implementation, which goes for the implementation of almost anything. It depends on the complexity, but this one is a complex issue, so it will take some time.
It can be done. I’ve seen it done. It starts at the top. It’s an integrated approach, using a number of mechanisms. By that, I mean it won’t just be about a harassment policy; it will be about supplementary policies and training we will be able to develop in order to make sure everyone is on the same page moving forward.
Senator Hartling: Thank you. Do you have ways in which you’re going to help build the relationships with people, staff and Senate? Have you a plan for that?
Ms. McCullagh: There’s a significant human resources transformation effort happening right now, which is creating a component of our team that will be business partners. Having members of the human resources team quasi-embedded with respect to their partners will help us understand what our clients need, what’s keeping you up at night and what your pain points are so that we’re in a better position to help and support you. That is a mechanism.
I absolutely need to understand the business of my clients if I’m going to be able to help them in any way, shape or form. I’ve already started having meetings with many of my counterparts to do exactly that. I plan to do that moving forward, as well, for that very purpose.
The Chair: Thank you all very much for taking the time to be with us today to give your evidence and to hear senators’ questions. We appreciate your time.
For our second panel today, we are pleased to welcome, from the Canadian Human Rights Commission, Marie-Claude Landry, Chief Commissioner. She will introduce her team.
Marie-Claude Landry, Chief Commissioner, Canadian Human Rights Commission:
Good afternoon, everyone. I will give my remarks in French and English.
Thank you for inviting the Canadian Human Rights Commission to take part in your study into Bill C-65. I am accompanied by Fiona Keith, Senior Legal Counsel, Human Rights Protection Branch; and by Marcella Daye, Senior Policy Advisor, Policy, Research and International Division.
When I spoke on this bill before the House of Commons standing committee in February, I said that this bill is another example of this government putting human rights back on the national agenda. And I said that this bill is a positive step towards addressing harassment, sexual harassment and other violence in Canada’s workplaces. I still feel that way.
That is why the Canadian Human Rights Commission welcomes this bill’s preventive regulatory regime. We want this bill to succeed in the same way that we want all other upcoming equality initiatives to succeed, from pay equity legislation to the National Housing Strategy. We believe that all these regulatory regimes could go a long way to preventing human rights injustices before they happen.
However, in order to achieve that success, it is imperative that these regulatory regimes be developed with regard to the very human rights they are intended to support. These regimes must not become confused with fundamental and quasi-constitutional human rights protections or human rights remedies. Instead, they must complement them. They must help point victims toward those human rights protections and toward human rights remedies.
This is why I’m here today, to ask that human rights and the language of human rights be integrated, wherever possible, into all regulatory regimes, including Bill C-65.
Now, having said that, we also recognize that time is of the essence and that this bill is in its final stages of review. Therefore, I come with three concrete recommendations, which we believe will help better align it with a human rights approach. The three recommendations are:
One, that the definition of harassment be broadened in order to be as inclusive as possible.
Two, that the bill includes recognition that, in Canada, a harassment-free and violence-free workplace is a human right.
And, three, the same as before, anyone in Canada experiencing harassment or workplace violence can still avail themselves of the protections in the Canadian Human Rights Act using a variety of pathways.
Before I go on, we have prepared some draft language on each of these points for your consideration. It is included in our written submission.
Our first recommendation is the simplest of the three but perhaps the most important. We believe this amendment will help ensure that this bill is applied as broadly as possible, that it will have a longer lifespan and that it will make a more systemic impact on this systemic issue. We believe all of this can be done by changing just one word.
Currently, in the section of the bill that defines harassment, the introductory phrase says, “Harassment means . . . .” We are asking that this phrase be changed to “Harassment includes . . . .”
Human rights issues are constantly evolving. Bill C-65 should recognize this. It should allow for it. We strongly believe this single change will broaden the definition and transform it from being a close-ended definition to one that is more agile and more inclusive, one that can evolve.
Given the current environment, we believe there has never been a more important time for Canada to get this right, and we can. Therefore, we strongly urge this single but important change.
Our second recommendation includes three elements, all of which are outlined in our submission. Taken together, they add language to this bill that clearly recognizes that in Canada a harassment-free and violence-free workplace is a human right. The language of this bill must be clear on its face that harassment is not simply a workplace-safety issue — it is a human rights issue. And that wherever workplace harassment or violence exists, a human rights violation has taken place.
The commission is appearing a second time on this important bill, because workplace harassment is a pervasive and deeply ingrained human rights issue in Canada. It is a barrier to equality and it is a form of discrimination. We would like the language of Bill C-65 to reflect just that.
The third and final point we would like to be made as clear as possible in the wording of the bill is this: Anyone in Canada experiencing harassment or workplace violence can still avail themselves of the protections in the Canadian Human Rights Act, using a variety of pathways.
The protections are the same for everyone. The pathways can be different. I’ll explain what I mean.
Everyone in Canada is protected from workplace harassment and violence on prohibited grounds of discrimination under the Canadian Human Rights Act. This was the case before the passing of Bill C-65, and it will be the case after. These human rights protections apply to everyone, including parliamentary staffers, members of Parliament and even senators.
The difference is simply this: Depending on your role or where you work or which body you report to or whether you are unionized, the pathway you take to access these human rights protections may be different. It is the same protections, different pathways. But regardless of which pathway you take, the fundamental and quasi-constitutional legal protections are only ever drawn from the Canadian Human Rights Act and nowhere else.
It must be made clear to everyone that the process in Bill C-65 can help prevent harassment, but victims still have the right to seek human rights remedies if and when they so wish.
Employers can help improve workplace culture and they can put new measures in place to prevent harassment, but, under Bill C-65, employers cannot compensate victims for human rights violations. If a victim of harassment wants to seek remedies or compensation for these violations, they can only seek those from the Canadian Human Rights Act. This must be made clear to people in the wording of this bill and in its application. Victims must know, as early on in the process as possible, that going through the Bill C-65 process doesn’t mean that they can’t go through the human rights process.
It comes down to this: On its face, Bill C-65 does not curtail any of the available pathways to human rights justice available to harassment victims. People need to know this. It needs to be clear. We believe that the bill must clearly require the employer to inform victims of harassment right away on how to go about assessing their protections under the Canadian Human Rights Act. We support the formation of the 1-800 line as great starting point, and we will keep advocating for these and other more robust awareness measures. We believe making this third amendment will prevent Bill C-65 from unintentionally limiting people’s human rights protections and will instead help it to fulfil its intended purpose.
I thank this committee for this final close consideration of this bill and for inviting the Canadian Human Rights Commission to share our expertise. In closing, I offer one last thought, that, when it comes to protecting people’s safety and people’s human rights, the language of our laws and our regulations matters a great deal. People will look to the language in Bill C-65 as a source of direction and knowledge on how to address and how to talk about this very serious issue of harassment and violence in the workplace. Let’s make sure Canada gets it right. Let’s make sure that Bill C-65 treats this issue not only as a workplace safety issue but as a fundamental equality issue that requires human rights language and, as much as possible, a human rights approach. Only in this way can we ensure that our workplaces provide equal employment opportunities for all.
We will be happy to support the committee further as it continues this important work. I will welcome, with my colleagues, your questions. Thank you very much.
The Chair: Thank you. We’ll start the questions with Senator Hartling, the sponsor.
Senator Hartling: Thank you very much. It’s nice to see you again. I was expecting a quote today. Marie-Claude Landry gave us a nice quote from Nelson Mandela when she came before, so I thought you might have one today.
Thank you very much for those recommendations. I really appreciate them. In thinking about number three, which I think is really important — they’re all important, but I’m just going to focus on that — if we don’t do that, if we leave that out, what could be some of the ramifications of not including that pathway of human rights or using that language? What could happen? What would be some of the problems or issues?
Fiona Keith, Senior Legal Counsel, Human Rights Protection Branch, Canadian Human Rights Commission: I’ll begin, and then my colleagues might have more to say.
We don’t think that leaving that language out would bar anyone from accessing the Canadian Human Rights Act because of the act’s quasi-constitutional nature, which will continue regardless of any other legislation that is passed. Those remedies would continue to be available, and the various pathways that the Chief Commissioner referred to, including labour grievances, would continue to be in force. What we are concerned about are unintended consequences that, because people don’t see them as being clear on the face of legislation, a pathway may not be used.
Marcella Daye, Senior Policy Advisor, Policy, Research and International Division, Canadian Human Rights Commission: Thank you again for the question.
In addition to my colleague’s response, I will also say that our proposal, and our very specific amendment and the wording that we have provided in our written submission, is also in response to two things that exist fairly uniquely in this process and this legislation.
The first is that a clause like this currently exists in the Canada Labour Code, and we wanted to raise the issue and ensure that, if that clause were removed, that you were aware that it was being removed, for one thing, and that, if you chose to propose an amendment to ensure that this kind of language was still included in the code, that you had some concrete options about what that might look like.
The second is that we wanted to bring forward to you some options in response to the debate that has happened on the Senate floor, on this issue quite specifically. We have listened carefully to the concerns that senators have raised. We know that you have been listening to the staff, and we know that you have been working on these issues for, in some cases, decades. We wanted to provide you with some concrete language to work with.
Senator Hartling: Thank you.
Senator Cordy: Thank you very much for being here. You’ve certainly helped to create a good dialogue, I think, and get everybody thinking. Your comment that human rights is being put on the national agenda again is always a positive thing when people are starting to talk about solutions. Will we get it right the first time? Maybe. Maybe not. I’m sure there’ll be a lot of changes.
I was really taken by your suggested amendment to say that harassment and violence “includes” instead of “means.” I wonder if you would just expand on that. I think you said it would make it more inclusive and that, as things change in the coming years — and hopefully they’re changing for the better — this language would resist the changes of time?
Ms. Landry: That is going to allow, in fact, the act to evolve with what we, or people, experience over the coming years. “Means” is so restrictive. “Includes” means it’s broadened. For us, that’s going to allow this act to remain accurate to all of the situations and allow us to face all of the situations that people will face over the coming years.
Ms. Keith: The kind of approach that the Chief Commissioner is describing is very consistent with human rights law generally. It’s an area of law that has very much an evolving interpretation so that it can respond to new social concerns and new activities. I think one of the examples that’s always used in the context of harassment — and you are likely aware of it — is the online harassment, the use of Facebook and other forms of social media to harass colleagues. It also intersects with how we define and understand the workplace, and it’s as a result of these kinds of evolutions and changes in our society that human rights law very rarely uses exhaustive definitions in favour of broader, inclusive language.
Senator Cordy: If this bill passes, how important is the whole idea of education for employees on Parliament Hill? When the minister spoke in the House of Commons, she spoke about the distinct power imbalances that you can get in private industry but that certainly are very prevalent on Parliament Hill. We have small offices. You have one, two or three employees, and you have MPs and senators. Everything I have read is that, not just on Parliament Hill but in other places, a lot of people are not coming forward with concerns. They are just dealing with it. You talk to people, and they’ll say, “Well, I didn’t realize that this was not normal behaviour.” Unless it’s extremely serious, on the far end, you definitely know, but when it’s on the low end, people are accepting it, saying, “Boys will be boys.” I’m not saying women can’t be harassers because they can be. But that social acceptance, we still have not cleared that hurdle yet.
Ms. Landry: Certainly, at the Canadian Human Rights Commission, we believe that education is the key for everything. It has allowed people to know about their rights, and education will allow us to perhaps address the fear of retaliation they often have and will help create a safe space for them to speak out about what they experienced, and understanding that what has been accepted for many years is not acceptable anymore. For me, as a chief commissioner in this important institution, I certainly believe that education is a key for everything, and certainly for human rights and raising awareness about how important it is.
Senator Cordy: I’m looking at the amendment that Senator Hartling was speaking about. Could that also be dealt with in an education package on Parliament Hill? This bill deals specifically with Parliament Hill. Could it be dealt with in an education package rather than being in the bill itself? That is the one dealing with nothing in the bill preventing an individual from seeking redress under any act of Parliament.
Ms. Keith: What is interesting, as an initial response to your question, is that the current provisions of the Canada Labour Code provide that that information must be shared with employees through the employer’s policy. So under the current provisions, that’s actually a requirement of employer’s policy, and those provisions the existing provisions, are being repealed. So there will now be a gap in the legislation, in Bill C-65, about advising employers.
We would say is it’s helpful that it be put into employers’ policies. It may also be helpful to have it clear on the face of legislation itself.
If I could go back to your original question about people coming forward in an environment like Parliament Hill, our experience through our complaint stream shows that it’s also about having a safe place for people to go, a neutral third party where they can feel more protected against retaliation. That can be difficult to do if you’re working in a small office with only two or three people.
Senator Cordy: Thank you very much for all that you do.
Senator Boyer: Thank you all of you for coming here today.
Picking up on what Senator Cordy has mentioned, I know that you have done a lot of work in providing those three recommendations, and you mentioned education and the implementation of policy. Do you see a way that there could be a more streamlined or complementary approach between Bill C-65 and the Canadian Human Rights Act that would actually strengthen the bill? That’s the first question.
The second question I would like to direct to Ms. Daye. I would like to ask her if she thinks that Bill C-65 protects the most vulnerable of the vulnerable, considering the work that she has done for the last many years.
Ms. Daye: I can start by answering a bit of your question. The question of a streamlined approach, I think, is on its way. I would say on behalf of the commission that we have been closely involved in the discussions and the consultations that have been taking place on the regulations as well. I do think that it is not unique to this bill, but it is welcome that they are producing the bill, consulting on the regulations and involving the Canadian Human Rights Commission at every stage of those.
We are very appreciative of that involvement, and we think that involvement alone, as well as the involvement of many other stakeholders — including unions, equality seeking groups and groups that focus on women’s violence — being consulted in the regulations is input that is consistent with a human rights approach as we build legislation and regulation. But it can also help to streamline, make it more likely that the intentions of the bill will be reflected in the regulations and that those will find life in the daily activities and the policies of the employer. I will say that the structure and the consultations that are set up are encouraging to us right now, as far as streamlining.
There will always be some variety in the pathways that people can take to get to the protections of our act. We wouldn’t want to streamline so significantly that people will only have one option. In fact, we find it can go further to deter people from reporting if they only have one option. We are a fan of the many pathways and many doors, and what is really critical is that those doors be safe and that they have somewhere safe to go.
On the second part of your question about the most vulnerable, certainly your focus is staff on Parliament Hill. These are often young staff who come to the Hill. Sometimes the best of the nation are represented here amongst the interns and the young staff who, in their own right, can aspire to be senators and lawmakers of this great nation. The circumstances in which they work are often to report directly to “their own CEO,” their own senior official in their own offices.
The degree of power imbalance that exists here on the Hill is quite rare, and that really needs to be taken into account to give people a safe option. I know that the regulatory consultations are exploring ways to enable that, such as having a safe place, an office that can be contacted outside of the Hill, in an ombudsman office or a sectoral body that is available to anybody who is a staff of Parliament. Those kinds of safe places are important to explore. I talk about these options not to say we think one is better than the other; I think they are exploring those, but it’s really critical. The commission is one of the places that people may reach out to, and we want to make sure that people feel comfortable reaching out to the commission to gather additional advice about their rights.
Ideally, the safe place also allows people to find a solution quickly, easily and completely within their own environment. That was the intent of legal decisions like Robichaud and Janzen v. Platy. We know that the employer is in the best position to fix the problem and make sure it doesn’t happen again without having to go outside, so we encourage that. There are particular vulnerabilities that exist that Bill C-65 and the policy itself at the Senate need to take care of. The commission itself will be appearing at the subcommittee that’s looking at the Senate policy as well.
Senator Boyer: Thank you very much.
Senator Pate: Thank you for all of your work, as well as for appearing here and in the other place.
Commissioner Landry, when you appeared before the house committee, you talked about the importance of amending, as you have today, to ensure that the bill specifically stipulates that the Canadian Human Rights Act and the Canadian Human Rights Commission can be accessed by employees. Do you have any concerns, in addition to what you have already said, about the impact of the result of the Vaid decision in this regard and whether there are additional reasons you think that we should be including this kind of amendment in the bill going forward?
Ms. Landry: First, in my view and in the view of the Canadian Human Rights Commission — as my colleague Ms. Keith mentioned — human rights legislation must be broad and easy to interpret. People must be able to see themselves in the legislation. It is extremely important that those definitions be included and that the application of the Canadian Human Rights Act be clear.
This act is designed to protect people who are in a vulnerable situation. As soon as we talk to people in vulnerable situations, we must ensure that they see themselves in the legislation, that they see themselves in a system that is available to them and that they feel comfortable enough to use the process that is available to them.
Ms. Keith: We learned from the Vaid decision one specific and unique thing, and that’s in relation to employees that are covered by Part I of PESRA. Of course, this is the operation of section 2 of PESRA, which is separate and apart from Bill C-65 and, in my understanding, it will not be changed by Bill C-65. The impact of section 2 is such that PESRA employees — I’ll nickname them that for ease of reference — who have a labour grievance are still going to be required to use that labour grievance in the vast majority of situations.
We will just conclude on that with our observation that Bill C-65 does not change any of the pathways for employees, whether that be a pathway directly to the dispute resolution machinery under the Canadian Human Rights Act, whether it be a labour grievance in either the public or the private sector or whether it be what I’m going to call a PESRA grievance for Part II PESRA employees.
Senator Pate: I also notice that the National Association of Women and the Law recommended some guidelines around who the external independent investigators might be and who might qualify as or be seen to be eligible as a competent person. I’m curious whether there’s anything you would like to add in that respect that might be of benefit to this committee in considering the bill.
Ms. Daye: Thank you for the question.
As we mentioned before, we have been involved in the consultations around the regulations. There has been a lot of discussion about the qualifications necessary for the competent person. We’re pleased to see that, as it stands now, knowledge about human rights law, including the Canadian Human Rights Act, is included in the list of the qualifications for that competent person. We think that goes a long way, and it aligns well with the recommendations we made when we appeared at the House of Commons on this bill. So we’re already seeing some of those recommendations being built into the plans for the regulations themselves.
We anticipate there will be more discussion about those regulations and that they will be fine-tuned over the summer months, but we’re very encouraged by what we’re seeing so far.
The Chair: Let me say this now: I don’t have anyone on the list now for round 2, so if senators have follow-up questions, they may ask those now.
Senator Pate: Do you have any other recommendations that might be useful to put on the record here today about what kind of training you think ought to be implemented, both for those who will be administering these policies as a result of the legislation as well as for those of us who have people within the offices in order to ensure that staff are aware of these issues?
Ms. Daye: I’ll answer first. We often talk about taking a human rights approach to legislation, policies and regulations. We’ve come to you with some recommendations about what that might look like in Bill C-65.
For education purposes, flowing from the regulations, at the very least, we will probably continue to recommend that such education should include education on human rights laws and the protections and the rights that employees have, not by virtue of attaining a certain degree of seniority or a managerial job but by virtue of being human. These are equality rights that people come to the workplace with and that should not be and cannot be stripped away.
Second, we would encourage education to place issues like workplace harassment and workplace violence in an equality framework. By that we mean that, as the Chief Commissioner mentioned in her opening remarks, these are not only concerns about psychological harm, although that is certainly a serious concern, or occupational hazards; they are fundamental issues of equality. Historically, we’ve seen that if women are harassed more often, they leave the workplace, they do not come back and they do not seek promotions. This is a fundamental issue of women’s involvement and equal opportunity, both in the workplace and in the Canadian economy as a whole.
The benefits we accrue to our society, equality, human rights and our economy when we ensure that workplace harassment and violence does not occur, permeate our society. They do not exist only through the benefits we’ll see from Bill C-65 being done well. It’s placing these issues in an equality framework that can help people see that laws and regulations that prohibit harassment and violence in the workplace can have similar effect to laws that prohibit pay inequality in the workplace. They are similar to laws and regulations that prohibit employment inequality in the workplace. All of these different types of laws can ensure that our workplaces and labour forces are thriving and that they fully include those who may be otherwise left behind because of barriers to equality.
The last thing I’ll say is that a human rights approach always considers issues of intersectionality. We would urge those to be put in place in any education package that is developed. Intersectionality, which most of you are familiar with, is the idea articulated in the Canadian Human Rights Act that people can experience barriers and discriminatory impacts based not just on one ground of our act but on the combined effect of a number of grounds. An Indigenous woman with a disability may suffer very profound impacts that are different from an individual who doesn’t share the disability categories, the gender categories or other categories. It’s about the importance of being able to understand the combined impact of inequality, not only as it is demonstrated in the workplace but about how people come to workplaces and how their lives before they come to the workplace may impact their ability to enjoy the equality rights they deserve in the workplace. As we all move toward better implementation of the calls that flowed from the Truth and Reconciliation Commission, building in those kinds of issues and those kinds of intersectionalities will be critical to the education packages.
The Chair: I have a supplemental, and then I’m sure the critic of the bill, who has just been able to join us, will have some questions.
I’m pleased to hear you talk about intersectionality, Ms. Daye, and the significance of that. Going back to the previous panel in the discussion, one of the comments that was made by Senator Andreychuk, who had to leave, is this whole question about intent and people’s interpretation. With issues of mediation, that often will be the response: “That’s not what I intended.” The more diversity we bring into the workplaces, the more likely those types of situations will come up. Are there any particular things you would suggest we try to do in this bill that might address those specific kinds of issues? I’m thinking about the daily micro-aggressions that may happen consistently. If a person gets to the point of trying to lodge a complaint, as we all know, the proving of one’s complaint becomes very daunting. Many people suffer in silence because they are afraid to go forward.
Ms. Daye: Thank you for raising that. Questions such as these are certainly part of the discussion at the regulatory level. Although I don’t think we would have specific recommendations for changes at the legislative level, some of the suggestions that have been made at the regulatory level are to acknowledge that a formal or even an informal complaint of harassment or violence in the workplace is one indicator that something has gone awry in the workplace. However, the experiences you have described, senator, are other indicators that some things are going awry. We’re encouraged that there is attention being placed on not only providing a robust response to formal and informal complaints of harassment, but that the workplace recognize that there are other indicators of inequality and other indicators that are precursors to harassment and violence that need to be taken into account.
Another practical step that may be on the table is to ensure that the data gathered about workplace violence and harassment complaints are not simply used in the framework of the Canada Labour Code but that the data are provided to the workplace as they consider employment equality issues more broadly. That includes taking those complaints into account as they are making their employment equity plans, as they’re considering pay equity steps and as they are looking at diversity and inclusion more broadly in their workplace. In this way, the knowledge that is gained of unfortunate events that may either be a precursor or the result of harassment and discrimination can be fed into more proactive steps that a workplace can take, and that’s really important as well.
Senator Ataullahjan: I apologize for not being here. I had some medical thing that had to be looked after. I’ve been advised that most of my questions have been answered, so I look forward to reading through the transcripts. Thank you for being here.
The Chair: Are there any other questions?
Senator Hartling: If there are no other questions, again, thank you very much for your good work. I love listening to you because what you’re saying is so affirming.
Say the bill passes and we go forward and include amendments and things like that. What else needs to happen to bring the cultural shift? What do you see as some things that would need to happen in Canada to make it a reality that we have equality in our workplace and in society?
Ms. Landry: For me, it’s education, education, education. We have to work with people, inform them and raise awareness. This is, again, what I mentioned earlier, the question of education. There is no other option. We need to speak out. We need to go to the universities and to the colleges. We need to talk with the future generation. That’s the only way that we will change the culture. We need to work with people who are actually experiencing that, but we also need to work with the future generation to change that mindset and make sure that that’s now part of how we live and what we experience — respect in every space of work.
To keep your point on Nelson Mandela, I will say that it always seems impossible until it is done.
Senator Hartling: Thank you very much. I appreciate that.
Ms. Daye: I’ll add that, as the Chief Commissioner said very early in her opening remarks, we see Bill C-65 as one of the many puzzle pieces that are coming together currently in Canada and that we are very encouraged by. If we think about changing culture, I’m a policy wonk, so my interests certainly go to legislation and policy. I think that we are encouraged that many puzzle pieces are moving forward now. You will soon see before you, we anticipate, some form of accessibility legislation and pay equity legislation, both of which have been publicly committed to by this government. These are all parts of a whole. They are all part of a system that can encourage and promote substantive equality. They work better when they are together. When all of these pieces come together, they will provide an uplifting force for substantive equality in Canada, and we are encouraged that they will, together, promote better equality and a change in culture more effectively than any one of them will alone.
Senator Ataullahjan: I apologize if you’ve already mentioned it, but I’m just looking over the notes. You speak about the act also giving the CHRC the authority to conduct research, raise awareness and to speak out on any matter related to human rights in Canada. I’m specifically talking about some of the immigrant communities. Do they know that they have this venue and that they can come to you? How do you raise awareness?
Ms. Landry: We are going to the universities. We have met with a lot of stakeholders. We are also meeting with employers. We are meeting with unions. This is how we raise that awareness that the Canadian Human Rights Act is a tool that provides them with tools that they can use to complain at some point if they feel there is a need for complaint. For me, this is the only way. It’s being out there and speaking out about that. This is what we have been doing, mostly, for three years. We also have simplified a lot our complaint process. We have tools in the online complaints process that would help people feel more support when they want to complain. There are many tools, actually, that we have developed and that we still develop and work on together.
Ms. Daye: I’ll just add that some of the ways that we speak out are not necessarily in the public eye, but they are coming before committees like yourselves and/or making written submissions. Our Chief Commissioner did make a written submission when Bill M-103 was being debated, in which we called again for a national action plan on racism, which would address, hopefully, in a more coordinated way, some of the issues that new Canadians are facing, as well as calls for changes to the criminal justice system and, certainly, the disproportionate representation in prisons. We’ve spoken out on a number of issues before parliamentary committees, but also in front of the United Nations. The Chief Commissioner was just recently before the United Nations Human Rights Council during Canada’s third cycle of the UPR, and we had raised a number of issues relating to vulnerable Canadians. We will continue to do that and to bring to bear all of the leverage that we can to encourage decision-makers and policy-makers and legislation-makers like you to ensure that the protections are growing and robust and that awareness of them is growing.
The Chair: Thank you all very much for being here. We appreciate hearing from the Canadian Human Rights Commission and your in-depth analysis of the need for a rights-based framework in this bill. I absolutely agree with you that the systemic barriers to equality and employment are often rooted in harassment and violence in the workplace. Thank you for bringing your analysis to us.
Senator Jane Cordy (Deputy Chair) in the chair.
The Deputy Chair: Welcome, minister. Before we proceed, we’re going to have all the members of the committee introduce themselves. I’m Jane Cordy, the deputy chair, and I’m from Nova Scotia.
Senator Hartling: Nancy Hartling from New Brunswick.
Senator Bernard: Wanda Thomas Bernard from Nova Scotia. I’m chair, but I’ll be leaving momentarily to go to the Senate.
Senator Boyer: Yvonne Boyer, Ontario.
Senator Pate: Kim Pate, Ontario.
Senator Dalphond: Pierre J. Dalphond from Quebec.
Senator Ataullahjan: Senator Salma Ataullahjan. I guess I’m the oldest member of this committee. I’m the other deputy chair.
The Deputy Chair: For our third and final panel today, we are pleased to welcome the Honourable Patricia Hajdu, Minister of Employment, Workforce Development and Labour. Accompanying the minister this afternoon, we have, from Public Services and Procurement Canada, Charles Bernard, Director General, Portfolio and Government Affairs. From Employment and Social Development Canada, we have Lori Sterling, Deputy Minister of the Labour Program; Brenda Baxter, Director General of the Workplace Directorate, Labour Program; and Barbara Moran, Director General, Strategic Policy, Analysis and Workplace Information.
Minister, please begin your opening remarks.
Hon. Patricia Hajdu, P.C., M.P., Minister of Employment, Workforce Development and Labour: Thank you so much, Madam Chair. I’m pleased to address this committee on a legislative initiative that is really a human right: the right to live and work in an environment that is free from harassment and violence of any kind.
Our government’s position is simple: Harassment and violence, including sexual harassment and sexual violence, are unacceptable and cannot be tolerated. Workplace harassment and violence is pervasive, it can take many forms and it has profound effects. We must do everything in our power to stop these unacceptable behaviours.
We’ve all heard stories that demonstrate the detrimental effects of these behaviours.
Employees being bullied to the point of feeling physically ill at the prospect of coming to work. Young staffers on Parliament Hill abandoning promising careers because they feel they have no other choice.
When such inappropriate actions are allowed to persist, they create poisonous work environments where those in power feel entitled to abuse their authority and those in more vulnerable positions feel powerless to speak out because they fear repercussions. The result is a self-perpetuating cycle of inequality. The consequences of that inequality and the resulting abuses of power can be disastrous.
But it’s not only the affected employees who are subjected to hardships.
An environment that allows these behaviours to persist or, even worse, to flourish hurts everyone. It’s bad for those who witness the behaviour but don’t feel they are in a position to intervene. It’s bad for employers, because the net result for them is often a loss in productivity, higher staff turnover, and, in some cases, legal costs and unwanted publicity.
To gain a deeper understanding of the problem, we held consultations in 2016 and early 2017. This might not surprise any of you, but we found that harassment and violence is a problem in many workplaces, and that what we have in place right now is not enough to properly deal with the problem. That’s why we introduced Bill C-65.
Using the most effective legislative and policy levers available, Bill C-65 will help put an end to workplace harassment, violence and their consequences in federally regulated and parliamentary workplaces. Currently, workplace violence is dealt with under Part II of the Canada Labour Code and sexual harassment is dealt with under Part III. Part II applies to the federally regulated public and private sectors, but Part III only applies to the latter. Neither applies to parliamentary workplaces.
The intent of Bill C-65 is to replace this disjointed approach with something that is much more comprehensive. Bill C-65 will accomplish this in part by expanding current violence prevention requirements under Part II of the Canada Labour Code to require that employers prevent and protect against all forms of workplace harassment and violence. This will ensure the full spectrum of harassment and violence, including sexual harassment and sexual violence, is captured.
The amended Canada Labour Code will also require employers to respond effectively if and when incidents do occur and support affected employees after the fact. By expanding coverage of Part II to parliamentary workplaces, including staff in the Senate and the House of Commons, Bill C-65 will ensure that more Canadians benefit from these improved protections.
Nothing in Bill C-65 will prevent an employee from filing a complaint with the Canadian Human Rights Commission or a labour grievance under the Parliamentary Employment and Staff Relations Act, or PESRA.
It’s my understanding that the committee heard from the CHRC earlier, and my officials have been in contact with them to ensure that Bill C-65 will not prevent an employee from seeking redress through the CHRC or other bodies. We understand the CHRC is seeking clarity to reinforce this fact in the legislation. My primary goal now is ensure the legislation passes as quickly as possible to protect as many people as possible.
Following the passage of Bill C-65, regulations developed through tripartite consultations will be introduced. Among other things, these regulations will outline the essential elements of a workplace harassment and violence prevention policy, as well as the procedures that should be in place to respond to incidents of harassment and violence when they do occur. These procedures would include time frames, confidentiality, the qualifications of a competent person to investigate a situation and provide recommendations, the role of the workplace committee, employer obligations to implement corrective measures responding to the investigation report of a competent person and the support to be provided to employees who have experienced harassment and violence.
Workplace committees in particular will play an integral role in co-developing the workplace’s prevention policy and its mandatory elements, identifying a roster of competent persons, assisting in implementing the competent persons recommendations and in reporting incidents. They will provide support, as requested, to employees who have experienced harassment and violence and will receive redacted copies of the competent person’s report to ensure recommendations are implemented. Bill C-65 will also ensure that more workplaces have workplace committees by making them mandatory unless there is a committee already in place performing the same function.
But we need to ensure that people feel comfortable to come forward and to report incidents of harassment without fear of reprisal, humiliation or the rumour mill. For these reasons, and like other jurisdictions such as Ontario that have brought forward this type of legislation, Bill C-65 removes workplace committees from participating in the specific investigations of an occurrence of harassment and violence.
Our priority has always been and will always be protecting affected employees.
We are well aware that legislation alone will not solve this problem and that Bill C-65 will only apply to federally regulated and parliamentary workplaces, but my hope and my belief is that Bill C-65 will set a standard and will be a catalyst for cultural change in workplaces across Canada. That’s why I’m asking everyone here today to continue the non-partisan support that was demonstrated in the other chamber.
With your help, we hope to pass this important legislation as quickly as possible.
Every day without this legislation is another day without protection for federally regulated and parliamentary employees. I do want to thank the Standing Senate Committee on Human Rights for your insight, for your support and for your guidance in this very important legislation.
The Deputy Chair: Thank you very much, minister. We will begin questioning with the sponsor the bill in the Senate, Senator Hartling.
Senator Hartling: Minister, I want to thank you for your work on this bill and also for your great team. The team has been phenomenal. I have worked with them in the past few months and I want to thank them all for the work you have done.
My question is around a couple of issues. Minister, were you surprised when you found out the number or how much this is going on in federally regulated places of employment and the Senate and Parliament? Were you surprised about that? Was it more than you thought or less than you thought? How did you feel about that or what did you take from this?
Ms. Hajdu: Thank you, senator. I have been asked that question a lot, and I have to be perfectly honest. As a woman who has been in precarious work in my life and who has worked in many places where there are odd power dynamics, I was not particularly surprised. I was especially not surprised about experiences that people have in this place, in Parliament, as it is such a male-dominated hierarchical place. It has all the hallmarks of a place where you would expect harassment, up to and including sexual violence.
It was disheartening to see it in black and white, in those numbers, and some of the stories were heartbreaking. But as women, in particular, knew that I was working on this legislation, not only did I hear through the formal mechanisms of consultations and reports and online surveys, but I also heard my own version of stories through many, often times young, employees in this place who had experienced what in any other place we would call ongoing persistent harassment.
Sadly, I’m not surprised. I think that anyone who has ever come up through the ranks, so to speak, from places of relative powerlessness would probably not be all that shocked.
Senator Hartling: The second part of the question is around the framework to deal with people with disabilities, vulnerable people, LGBTQ, people of different races, Indigenous people. How will the framework in the bill help them in issues around bullying and things like that? What will the framework do for them?
Ms. Hajdu: Having a framework that is clear about what harassment and violence and provides that employers have an obligation to have a framework to let their employees know what that framework is, knowledge is power. This is particularly an issue that does affect the most vulnerable. I mentioned it earlier in my comments. People who are powerless — often those are people from groups under-represented in many different ways — are often the most vulnerable to abuse. Having strong legislation that is fully comprehensive of what an employer’s responsibilities are and what the employee’s rights, and that provides a framework and a place that at any time, should the process not be followed, they have another route to go is definitely improvement over what we have in place now.
Senator Hartling: Thank you.
Senator Ataullahjan: I am the critic of the bill. Minister, I have to thank you for this bill. I think there was a great need for this.
In your appearance before HUMA in February of this year, you advised that Part 20 of the Canada Occupational Health and Safety Regulations would be amended in order to support the implementation of Bill C-65, and to that end, consultations with employers and employee groups would be carried out. You briefly mentioned consultations. Can you tell us more about the consultations, and will you be reporting back with the groups that you consulted? How did the consultations inform the regulatory amendments as they relate to prevention, response and support?
Ms. Hajdu: Thank you. Those are some excellent observations.
In terms of the consultations, we held broad consultations on the issues of workplace harassment and violence with various stakeholders and with the general public. The consultations were held between June 2016 and March 2017 through targeted teleconferences, in-person meetings, an online public consultation survey and ministerial round tables with stakeholders and experts. We wanted to get that 360 perspective of people who had been affected by this, but also people who had studied and thought about this for a long time in terms of what steps needed to be taken.
We began consultation on the harassment and violence regulations in March 2018 and throughout the spring of 2018 and ongoing. The labour program is the process of convening nine round tables and four WebEx meetings on the proposed regulations. We will also be making available an online discussion paper that will detail the proposed regulations and a survey for respondents to provide their comments and feedback. We believe this is an important reiterative process and that, as we develop the regulations, people who will be affected by the regulations will have an opportunity to provide input.
Have I missed parts of your questions?
Senator Ataullahjan: No. Did you give us a list of the stakeholders, or can you provide it?
Ms. Hajdu: We can provide a list of stakeholders that have been consulted. I don’t have it handy right now, but we can get you information about who specifically was consulted.
Senator Ataullahjan: Thank you. Will the regulatory amendments come into force concurrently with Bill C-65? The reason I ask is because legislation such as this is only as good as its application and implementation.
Ms. Hajdu: Absolutely. First, of course, the legislation has to be passed, and there will be the consultation that we’ve talked about in terms of the proposed regulations that will go with the bill. Developing educational materials can begin immediately upon completion of the legislation. We will be training specialized labour program inspectors, adjusting information systems for tracking new employer reporting obligations and initiating an awareness campaign to inform workplace parties about their new rights and responsibilities.
Some of this work is already ongoing, and we are getting ready for when the bill comes into force. Getting all of these things in place, though, may take a year or more after the legislation is passed. We are hoping it will be in force with the full regulations by fall of 2019.
Senator Ataullahjan: Was gender-based analysis used when you were drafting this bill, and what were the outcomes?
Ms. Hajdu: Absolutely. One of the things I’m proud of is that my department has a very strong gender-based analysis team and process, so there was gender-based analysis used throughout the drafting of the legislation. In fact, as a former minister of Status of Women, one the first directions I gave to both of the ministries was that it would be very embarrassing for the Minister of Status of Women to go forward with proposed legislation that didn’t have gender-based analysis.
Senator Ataullahjan: I had to ask.
Ms. Hajdu: They are paying close attention to that.
Senator Pate: Thank you very much to all of you for attending.
Minister, I’m sure you’re aware that the Canadian Human Rights Commission has made some particular recommendations that, in areas currently slated to be covered by the regulations, the legislation be amended to ensure that the protections are up front. Would you object to those amendments being made, should the recommendation come from the Senate?
Ms. Hajdu: Just to be clear, there is nothing in Bill C-65 right now that prevents an employee from filing a complaint with the Canadian Human Rights Commission. It’s very important that people understand that. Nothing in this legislation changes that right for people who choose to pursue that pathway.
We’ve said that we’re open to amendments. The challenge with amendments is whether or not the amendment is worth it in terms of the delay that it poses in getting the legislation through. If, in fact, it doesn’t change the nature of the bill, if it’s there for clarification purposes but actually doesn’t strengthen the bill in any way since the bill in no way prevents people from pursuing that route, I would say we’d have to think very carefully about how long that might pose in terms of delays.
Senator Pate: What about the provisions that would repeal some of the current mechanisms? Certainly, there is some question as to whether right of access would be automatic or would be as available should those provisions not be repealed, and I’ll have a look for some if you need them. For instance, the existing obligation under the code with respect to preventing sexual harassment, section 247.3 of Part III of the code, would be repealed by Bill C-65, as I understand it.
Ms. Hajdu: My understanding is that what we’re trying to do with repealing that is actually cohesively put all of this together in a package so that we have a more comprehensive approach to harassment and sexual violence across the continuum. I’ll let Deputy Sterling speak to this.
Lori Sterling, Deputy Minister, Labour Program, Employment and Social Development Canada: Thank you very much. It’s true that we repealed the entire section in Part 3 that deals with sexual harassment, not just the provision dealing with the Canadian Human Rights Code. The reason it was in the prior section was because there was no other remedy for individuals. We didn’t have all of the provisions that we now have in Bill C-65. What we effectively did under the old scheme is said that employers have to have a policy, and, if you need relief, go to the Human Rights Commission. In the new system, we got rid of the messaging about your only relief being the Human Rights Commission. Instead, what we’ve got is a complete code, with an internal review mechanism.
The Canadian Human Rights statute is a quasi-constitutional statute. No ordinary piece of legislation can override it, so people would, of course, always have the ability to go there. They might choose that, for example, if they want damages. Similarly, there are other kinds of labour relations statutes that could provide relief, such as grievance statutes. People might prefer that route. People might prefer going criminally, if it’s violence. The Criminal Code has relief.
I think it was appropriate to remove the whole previous section and put in a new process, but also, through education, training, maybe even in the policies, we could mention that the new process is one of many different avenues to seek relief, of which the Canadian Human Rights Commission process is one.
Senator Pate: The specific recommendation of the Canadian Human Rights Commission is that the specific duty of the employer in section 125(1)(z.16) should be amended to read — and then you know what they’re proposing — “to make every reasonable effort to maintain a workplace free from harassment and violence,” and it continues on. They included this rather than just relying on those kinds of provisions being put into the regulations. Would there be an objection to that if that’s a recommendation coming from this committee and, ultimately, the Senate as a whole?
Ms. Sterling: I answered one part of your question, I think, which was the removal of the prior reference. I didn’t answer the first part of your question, which is this one, the proposal to make every reasonable effort.
I think that, as the minister says, we are open, but what I would note is that we have, in various sections of the statute already, the purposes of the statute. For example, in section 122.1, we say that the purpose of the statute is prevention. So all of a sudden, we’ve now got two different purposes. In another section of the statute, section 124, we say that the general duty of the employer is to ensure the health and safety at work of every person employed by the employer. Then we have another section, which says, in 125(1)(z.16) that we will, in the regulations, which you referred to, put in more detail about how one goes about preventing and protecting against harassment. So while we’re open, I would say that the existing bill amply covers off the various purposes of the statute. To make yet one more statement about the employer making reasonable efforts would appear to be the fourth time in the statute that it’s mentioned.
Senator Pate: Which is, of course, the purpose of legislation, but I’m not hearing you saying you would object to those?
Ms. Sterling: Oh, no. I think it’s up to the minister.
Ms. Hajdu: Ultimately, we have to decide whether or not the addition of another paragraph, as my deputy points out, which we feel is very clear throughout the legislation, and the delay that that represents, potentially, is worth the addition. I think those are decisions that we’d have to consider.
I urge the committee to make as few amendments as possible that are unnecessary. If there is obviously an oversight or there is something in there that is opposite to the goal of the bill, I certainly really want to address that, but if it’s something that’s essentially repeating what, in fact, the legislation already says in various different ways and it’s there more to make a statement than it is to actually correct an omission or make a correction to something that perhaps is preventing the objective of the bill, then I’m not sure it’s worth the value in potentially delaying the process of the bill.
Senator Pate: Would that be your same position with respect to allowing, for instance, the amendment to permit a victim to choose a person, not to require it to be someone designated by an employer, the provision in 127.1(1)? The current requirement is to report to a supervisor and some discussion around the under reporting, which we know is a significant challenge already. One of the suggestions is that we actually have someone of the victim’s choosing.
Ms. Hajdu: This is about the competent person.
Senator Pate: Yes, a person designated as a competent person.
Ms. Hajdu: The competent person does need to be a mutually agreed upon individual, and this can be a person internal or external to the organization. That already exists, that this isn’t a unilateral decision and that it is something that’s agreed upon between the parties.
Senator Pate: But certainly it’s not as explicitly indicated and an employer could demand it be someone in the power imbalances?
Ms. Hajdu: It is explicitly mutually agreed upon.
Senator Pate: So there’s no need to strengthen that part either?
Ms. Hajdu: From our perspective, no, because the legislation is clear that this can’t be a unilateral process.
Senator Boyer: Thank you, all, for appearing here.
I just wanted to touch a little bit more on what Senator Pate talked about with the mutually agreed-upon competent persons and the workplace committees. My question, in particular, is this: Will these be defined within the regulations?
Ms. Hajdu: Yes.
Senator Boyer: How do you ensure that privacy and confidentiality are protected, as well as looking at a culturally relevant approach? I’m thinking about a mutually agreed-upon competent person, and say we have an Indigenous woman and there is nobody who is in the list of competent people who would be acceptable. I’m just not quite sure. Can you give me more details about how that would actually work?
Ms. Hajdu: The process is such that there would be a list of competent people who would be available, but if the parties can’t agree, then the labour department can help mediate a competent person for the parties in that case.
Senator Boyer: So how is a competent person defined? How would they be defined?
Ms. Hajdu: There will be definitions for what kinds of training, expertise and experience a competent person has to hold.
Senator Boyer: And that would include a culturally relevant approach, correct?
Ms. Hajdu: Yes, it would.
The Deputy Chair: I will ask you a question before we go to the second round. In your comments this afternoon and also in your comments when you spoke in the House of Commons, you spoke about distinct power imbalances that you find on Parliament Hill that aren’t necessarily found in most workplaces. You also spoke about the problem being too large to be dealt with by legislation alone.
Many people — I’m not going to say “most” — keep silent and don’t speak to somebody about the harassment occurring in their workplace. There are many reasons, but the bottom line is that they don’t feel safe doing so. If the bill passes — and I know it passed the House of Commons unanimously — what types of education will your department do to ensure that workers on Parliament Hill, particularly, are aware of the changes that have been made and that they feel a level of comfort in coming forward if they are being harassed?
Ms. Hajdu: Thank you. It’s an excellent question. All too often people stay silent for a variety of reasons. In the experiences I’ve had in the workplace, quite frankly, it’s usually monetary. If your employer pays your paycheque and, in my case, you’re a single mother, you may stay in a place that’s uncomfortable for a very long time while you seek other employment, perhaps. Quitting is often not an option for people. Money is one of the challenges, but there are many other challenges that force people to keep silent.
Sometimes it’s of a gradual nature, where people are questioning whether what they’re experiencing is harassment. That’s very common as well. Is it flirtation? Is it harassment? When does it cross the line? All of a sudden, a person is uncomfortable, but the breaking point is so slow that sometimes they feel they don’t have recourse because our culture essentially says that you’ve brought it upon yourself when those things happen.
You talked about a cultural change. Part of the cultural change is having strong legislation and education. The primary goal of this is really prevention. There are response and support components — we respond to incidents and support people who have experienced harassment and violence in the workplace — but the prevention piece is where my heart lies as a former public health professional.
We can actually do a better job of training employers about what their obligations are, training people about what the expectations are, what they can expect as an employee and what their recourse is when something’s happening, helping employers come up with processes that range from mediated services all the way to far more interventionist types of approaches.
I think about when I was an employer and I had a situation where I had an older male social worker, if you can believe it, proposition his much younger colleagues. This was in a context of everybody having some social work training. It was to the point where it made her feel uncomfortable. She came forward and complained to us. We were able to mediate that, and he was able to change his behaviour. There are many opportunities where, if you catch the behaviour early enough or in a place where it’s not so severe, you can actually change the trajectory for both the perpetrator and the person who is experiencing that violence or harassment. It was a very empowering experience for the young person who came forward, and it was an eye-opening experience for the older person who, from his perspective, wasn’t doing anything wrong.
When we talk about the education piece, it has to be comprehensive. That’s why there’s a piece around ensuring there is strong policy, that employers have that strong policy and that they do the appropriate training so people know what the policy is and what their rights are. Through that, there is also a conversation about the nature of this and how it’s all of our responsibility, even as bystanders, to address this when it’s happening in the workplace.
Senator Ataullahjan: In line with what Senator Cordy said, my concern is talking about visible minority women, especially a lot of new immigrants who wouldn’t know what rights they have, what they can do and where they can go to complain. If you’ve just gotten a job, you will be worried about losing that job, as well as the stigma attached to sexual harassment or even harassment. Is this bill going to make it a bit easier for them? Is there any special way these women or men are going to be told about their rights?
Ms. Hajdu: It’s my hope that every step we take is going to make it better for the most vulnerable people in our country, whether it’s people who are visible minorities, newcomers, people who are living with disabilities or Indigenous people. This is the whole intent behind the goal. This is about power, and often it is those most vulnerable groups.
Will it solve everything overnight? No, I don’t think it will, because I don’t think legislation can solve what is a systemic problem in a very patriarchal culture. I can say that it will, and it already has, elevated conversations in this place and in other workplaces, and internationally. I just got back from the ILO, and Canada is leading the development of convention on workplace harassment and violence. The conversations were all around the effect this has on people who are more vulnerable because of their set of circumstances. I’m not naive enough to think this is a silver bullet and all will be good from this point forward, but I believe that in the absence of this legislation, we are essentially averting our eyes and saying it’s somebody else’s problem and not ours.
Vulnerable people are at the heart of what I’m doing as a minister and our government is doing. Everything I do is with the lens of ensuring those who have the hardest time to get ahead have a chance to do that, whether it is through incentives to hire people from under-represented groups or strengthening the Aboriginal Skills Training Program through increased funding and autonomy, and longer commitments for funding. These are the kinds of actions our government is taking. We know that when people have that fair shot at success, they actually take it. They contribute.
There’s nothing different about this legislation in that it has completely been constructed with the understanding that those most at risk are those vulnerable groups. This is a huge step forward, but it isn’t going to solve the problem immediately or overnight. It will take time, and it will be part of a culture shift. It will contribute to the ongoing conversation that has already been started in this country and others by brave people coming forward and talking about it.
Senator Ataullahjan: Were there any best practices internationally that you looked at to strengthen this bill?
Ms. Hajdu: Absolutely. I’ll let my deputy talk a little bit about the best practices, but the approach of this government has been to use evidence-based decision-making in everything we do, and this would be no different.
Ms. Sterling: We searched the globe to find some best practices out there. We’ve tried to incorporate a lot of them into the approach.
For example, the notion that harassment is on a spectrum and that the definition should recognize that it can be harassment from incivility all the way through to violence in a single approach is a world best practice.
The notion of a mutually agreed competent person who is independent from the parties when the parties can’t resolve is itself a best practice, and we’ve incorporated that piece into the legislation as well.
The requirement that the employer has to follow the recommendations where it’s reasonably practicable is another kind of best practice.
At the minister’s experience and instruction, we’ve tried to incorporate best practices. It is exactly what she’s been talking about. It’s not just about how to respond when an incident occurs but to build it on an objective of prevention, response and support, which builds on the minister’s own work when she was working in the space of violence against women as Minister of Status of Women.
We have prevention measures. We have support measures. For example, we already have a hub that’s up and running that takes calls and provides awareness, and eventually we will have training on the new legislation.
Those are some examples of ways in which we’ve tried to be cutting-edge.
Senator McPhedran: I was watching as I was multitasking upstairs. I think I’m fairly up to speed.
First of all, I want to express very deep and sincere appreciation to you, minister, and to the whole range of people who have been working with you in making this very significant breakthrough that I think will have a tremendous ripple effect to better our society.
My question is geared to your point about the tripartite process in developing the regulations. It comes out of my own experience in this field, which is that very often the regulations are the place where you really see the kind of change that is envisioned in the law. It doesn’t come about unless the regulations are very much geared to the practical realities that have to be addressed. I trust that is happening.
My question, though, is quite specific, and that is that a typical tripartite process would not specifically involve survivors of the processes that are going to be dealt with in the regulations. May I know whether this is being given consideration and whether, with proper regard for confidentiality, there will be feedback on draft regulations? What so often happens is that regulations are enacted, and they’re enacted without those who have some of the deepest experience; and then all of the emphasis shifts to them to somehow turn that huge ship around again. I’m hoping to hear something a little different from you about the process around the regulations.
Ms. Hajdu: Absolutely. First of all, I would say that some of the staunchest fighters around harassment and sexual violence are women’s groups in the labour movement. We will definitely be consulting with the women’s groups of the labour movement who have an enormous amount of advocacy experience around this issue. I personally, as former Minister of Status of Women and now Minister of Labour, often do a double-check with the women’s groups of labour movements because sometimes they have differing perspectives than their brothers.
We will also be ensuring that women’s groups with experience in general on this issue will be consulted through the regulation process. There’s an opportunity for the public to comment as well. The regulations will be published, and there is a period of time where the public has an opportunity to comment on those regulations.
Don’t count the employer groups out because oftentimes it’s women in employer groups who have had some of the harshest experiences in terms of harassment. These are women, for example, in capital markets. One of the most profound experiences I had when I was Minister of Status of Women was consulting with a group called Women in Capital Markets. These were women who were typically vice-presidents or perhaps presidents of smaller companies, but certainly not presidents of banks because we don’t have very many of those. These women talked about some of the harassment and experiences they had in the workplace as high-powered women in a sector that you wouldn’t imagine, necessarily. It wouldn’t be top of mind when you were thinking of women who were experiencing harassment.
I’m confident we will have a variety of women’s voices, in particular, and people who have experienced harassment and violence and who will be able to speak with credibility and experience about a personal experience they will draw from to ensure that the regulations get it right.
Senator McPhedran: I think we would have a fair degree of consensus around the room that those of us who are working in Parliament are working in a bubble that has operated for a long time, as you pointed out in your remarks, without much accountability and reference to laws that have applied to others for some time. In the regulations process, will there be that opportunity for staffers and others who have lived through experiences in this particular environment to also have some input?
Ms. Hajdu: My officials are quite excited that, yes, there are. There will be a special consultation for Parliament Hill on the regulations. That’s good news. Thank you for flagging that. You’re absolutely right. Certainly you know my background, that there is “Nothing about us without us.” That’s certainly my philosophy.
I have obviously given those instructions many times, that whenever we’re reshaping or transforming a program, this one or another, or an approach, that we need to make sure that the voices of people who are most affected have an opportunity to talk about those things that will continue to affect them.
The Deputy Chair: Minister, thank you very much for being with us today. The conversations that we’re having around this bill are very helpful to everyone. As one of the witnesses from the Human Rights Commission said, this bill is one of the many puzzle pieces that will make things better.
Minister, I share your hope that this bill will cause a cultural change because prevention is the goal that we’re all looking for. We can all pick up the pieces later, but prevention is the key. You certainly spoke about that in your remarks today.
Thank you to your officials, who have been very helpful to us in giving a lot of information. Senator Hartling spoke earlier about the help they have been to her in sponsoring this bill.
(The committee adjourned.)