Proceeding of the Standing Senate Committee on
Human Rights

Issue No. 31 - Evidence - Meeting of June 14, 2018


OTTAWA, Thursday, June 14, 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 4:15 p.m. to give clause-by-clause consideration to the bill.

Senator Jane Cordy (Deputy Chair) in the chair.

The Deputy Chair: We’ll begin. I apologize. I was trying to get our reports passed in the Senate. I’ve been trying for three days, so I thought I can’t leave when we’re this close.

This afternoon we are proceeding with clause-by-clause consideration 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.

Before we begin, I’d like to remind senators of a number of points. If at any time a senator is not clear on where we are in the process, please ask for clarification. We must do our utmost to ensure that at all times we have the same understanding of where we are.

Before we take up an amendment in a clause, I will be verifying whether any senator had intended to move an amendment earlier in that clause. If senators do intend to move an earlier amendment, they will be given the chance to do so.

One small point: If a senator is opposed to an entire clause, I would remind you that, in committee, the proper process is not to move a motion to delete the entire clause, but rather to vote against the clause standing as part of this particular bill.

I wish to remind senators that if there is ever any uncertainty as to the results of a voice vote or show of hands, the cleanest and easiest route is to request a roll call vote, which provides clear results. Senators are aware that any tied vote negates the motion in question. We’re familiar with that after this past week.

Finally, I’d like to highlight the presence of government officials in the room. If senators have any questions for them, we can easily call them to the table.

Are there any questions on what I’ve stated?

Senator Hartling: With regard to wording, there was a question last week. You’ll say something and then we agree or disagree? Is that how it works?

The Deputy Chair: Agreed or defeated, yes. You have a copy of the script as well, so if I make an error, please stop me immediately.

Senator Hartling: We had those words last week. Thank you.

The Deputy Chair: Is it agreed that the committee proceed to clause-by-clause consideration 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?

Hon. Senators: Agreed.

The Deputy Chair: Shall the title stand postponed? Agreed or not agreed?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 0.1 carry? Agreed or not agreed?

Senator Pate: I move:

That Bill C-65 be amended in clause 0.1, on page 1, by replacing line 7 with the following:

harassment and violence includes any action, conduct or”.

The Deputy Chair: Do you wish to make any comments?

Senator Pate: These were recommendations made by the Canadian Human Rights Commission. It was a primary recommendation, as well as by witnesses who appeared before us yesterday.

The Deputy Chair: Anybody else?

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 0.1, as amended, carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 1 carry?

Senator Pate: I move:

That Bill C-65 be amended in clause 1, on page 1, by replacing lines 15 to 19 with the following:

122.1 The purpose of this Part is to

(a) prevent accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment to which this part applies;

(b) recognize that every employee has the right to employment that is free from harassment and violence; and

(c) advance gender equality, address issues of racism and ensure that the rights of women workers, including those who face intersectional forms of discrimination, are respected, protected and fulfilled.”.

The Deputy Chair: Any comments?

Senator Pate: This was also a recommendation from the Canadian Human Rights Commission and the National Association of Women and the Law. One of the concerns was that the Canada Labour Code currently recognizes a fundamental human right to employment free from sexual harassment in section 247.2. Bill C-65 would remove this provision as part of its repeal of Part III of the Canada Labour Code, so the purpose is to ensure that the right is preserved in Bill C-65’s new provisions on harassment and violence.

The Deputy Chair: Any further comments?

Senator Hartling: Could we do any of this in observations?

Senator Pate: If they’re not passed, certainly I’d be willing to talk about observations.

The Deputy Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Carried.

Shall clause 1, as amended, carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 2 carry?

Senator Pate: I move:

That Bill C-65 be amended on page 2 by adding the following after line 6:

2.1 The Act is amended by adding the following after section 123:

123.1 For greater certainty, nothing in this Part shall be construed so as to abrogate or derogate from the rights provided for under the Canadian Human Rights Act.”.

This was another amendment suggested by the Canadian Human Rights Commission and the National Association of Women and the Law.

The Deputy Chair: Before we do that, can we carry clause 2?

Hon. Senators: Agreed.

The Deputy Chair: Thank you. 2.1?

Senator Pate: Do you want me to repeat it?

The Deputy Chair: Any further comments or questions about the amendment that’s before us?

Is it your pleasure, honourable senators, to adopt this motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Carried.

Shall new clause 2.1, as amended, carry?

Hon. Senators: Agreed.

The Deputy Chair: Carried.

Shall clause 3 carry?

Senator Pate: I move:

That Bill C-65 be amended in clause 3, on page 3, by adding the following after line 8:

(z.163) ensure that the workplace is free from harassment and violence;”.

This amendment is connected to the second amendment, so it is basically bringing it into line with the amendment that’s already been made, as will the next one.

The Deputy Chair: Any further comments?

Is it your pleasure, honourable senators, to adopt this motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: So that motion carried.

Go ahead with the next one. We’re still on clause 3.

Senator Pate: I move:

That Bill C-65 be amended in clause 3, on page 3, by adding the following after line 8:

(z.163) ensure that the person designated by the employer to receive complaints relating to occurrences of harassment and violence has knowledge, training and experience in issues relating to harassment and violence and has knowledge of relevant legislation;”.

Again, this was a recommendation by the National Association of Women and the Law and related to some of the discussion we had about the lack of information people have.

Senator Ataullahjan: This is something we heard consistently throughout two days of testimony.

The Deputy Chair: Is it your pleasure, honourable senators, to adopt this motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 3, as amended, carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 4 carry?

Hon. Senators: Agreed.

The Deputy Chair: Agreed.

Shall clause 5 carry?

Senator Pate: I move:

That Bill C-65 be amended in clause 5, on page 4, by adding the following after line 25:

(2.1) Subsection 127.1(4) of the Act is replaced by the following:

(4) The persons who investigate the complaint shall inform the employee and the employer in writing, in the form and manner prescribed if any is prescribed, of the results of the investigation and provide them with a copy of the investigation report.”.

Again, this was a recommendation from the National Association of Women and the Law talking about ensuring due process and that individuals have copies of the reports that are written in relation to the complaints.

The Deputy Chair: Any further comments?

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Continuing on clause 5.

Senator Pate: This is an amendment proposed by Senator McPhedran:

That Bill C-65 be amended in clause 5, on page 5, by replacing line 11 with the following:

(b) The matter is otherwise an abuse of process.”.

This was again a recommendation from the National Association of Women and the Law to try to deal with the fact that sometimes “trivial, frivolous and vexatious” is used to invoke stereotypes such as victim blaming, so rather than use that language, to actually talk about abuses of process.

The Deputy Chair: Any comments?

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 5, as amended, carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 6 carry?

Hon. Senators: Agreed.

The Deputy Chair: Carried.

Shall clause 7 carry?

Hon. Senators: Agreed.

The Deputy Chair: Carried.

Shall clause 8 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 9 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 10 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 11 carry?

Senator Pate: I move — it’s 11.1.

The Deputy Chair: Go ahead.

Senator Pate: I move that —

The Deputy Chair: Sorry, clause 11.

Senator Pate: I agree with clause 11.

The Deputy Chair: Shall clause 11 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 11.1 carry?

Senator Pate: I move:

That Bill C-65 be amended in clause 11.1,

(a) on page 7, by replacing line 37 with the following:

139.1(1) The minister shall prepare and publish an annual”; and

(b) on page 8, by adding the following after line 5:

(2) The statistical data contained in the report shall include information that is categorized according to prohibited grounds of discrimination under the Canadian Human Rights Act.”.

This is again a recommendation from the National Association of Women and the Law regarding the importance of documenting these incidents.

The Deputy Chair: Any comments?

Senator Seidman: Proposed section 139.1 states that “The Minister shall prepare and publish an annual report . . . .” I thought that’s what we’re replacing it with. Oh, but it’s subsection (1).

The Deputy Chair: I wonder if you can explain because I’m also looking at the exact same wording: “The minister shall prepare and publish an annual report . . . .” I’m glad to know I’m not the only one who was confused about it.

Senator Pate: It’s changing the numbering.

The Deputy Chair: We’re only changing the numbering. That makes sense. Thank you.

Senator Pate: And then adding proposed subsection(2).

The Deputy Chair: Should we do subsection (2) first?

Senator Pate: It’s changing the whole section.

The Deputy Chair: We’ll do the section where we’re adding (1).

Senator Pate: And then adding (2).

The Deputy Chair: It’s all part of the same one. You already explained the second part.

Any questions?

The Deputy Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Shall section 11.1, as amended, carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 12 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 13 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 14 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 15 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 16 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 17 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 18 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 19 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 20 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 21 carry?

Senator Pate: Madam Chair, I move:

That Bill 65 be amended, in clause 21, on page 13, by adding the following after line 35:

(3) For greater certainty, subject to section 2, nothing in this Part shall be construed so as to abrogate or derogate from the rights provided for under the Canadian Human Rights Act.”.

This amendment was proposed by the Canadian Human Rights Commission and the National Association of Women and the Law talking about ensuring that the Human Rights Act still applies. The current amendment also applies to the Parliamentary Employment and Staff Relations Act, and to ensure that an identical provision applies for parliamentary employees as well.

The Deputy Chair: Any further comments?

Is it your pleasure, honourable senators to adopt the motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Carried.

Still with clause 21, are there any further amendments?

Senator Pate: Yes. I also move, Madam Chair:

That Bill C-65 be amended, in clause 21, on page 16.

(a) by replacing line 1 with the following:

88.7(1) The board shall, as soon as possible after the end of”; and

(b) by adding the following after line 10:

(2) The report must contain statistical data relating to harassment and violence in work places in which Part applies, including information that is categorized according to prohibited grounds of discrimination under the Canadian Human Rights Act. The report shall not contain any information that is likely to reveal the identity of a person who was involved in the occurrence of harassment and violence.”.

The Deputy Chair: Any comments?

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 21, as amended, carry?

Hon. Senators: Carried.

The Deputy Chair: Shall clause 22 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 23 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall clause 24 carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall the title carry?

Hon. Senators: Agreed.

The Deputy Chair: Shall the bill, as amended, carry?

Hon. Senators: Agreed.

The Deputy Chair: Does the committee wish to consider appending observations to the report?

Rule 12-16(1)(d) allows us to go in camera to discuss a draft report. That would include observations. Does the committee wish to discuss observations in public or in camera?

Senator Hartling, what would you like?

Senator Hartling: Let’s do it in public.

The Deputy Chair: This brings me back to Internal Economy days when we did as much as possible in public.

Senator Hartling: I thank everybody for being here. This is a very important bill, and I want to do a little preamble to the observations.

The bill is not perfect. It is not the ending; it’s only the beginning.

I thank you, Kim, for your hard work on all those amendments.

I believe that right now we’re in a real cultural change and a tipping point for the future of our workplace, to create and encourage respectful workplaces for all of us.

This week I had a few restless nights thinking about observations and amendments and what to do. I decided I would do the observations, not because the bill is perfect but because I felt that’s what I wanted to do. After my 34 years working with survivors of abuse, I know this is a very serious issue, and I wanted to get it moving along, but I respect the process we’re in. I’ve listened to people here on the Hill and the situations they’ve experienced. It’s really time for a change.

I think the bill signifies the change and a beginning with this legislation, but with the legislation, as we all realize, it doesn’t change the culture. That’s what we’ve got to be mindful of. We have to move forward on that, and we have to make sure that there is accountability on all of this so that we will eventually have respectful workplaces for all of us.

I know we will have to keep on with this issue. This isn’t the end of it today; we’re going to continue on with this.

The observations that I bring forward are coming from the testimonies we heard at the Human Rights Committee. I met with them individually and met with various people through the last months to really inform myself of the issue and our workplace here.

As far as the observations are concerned, do I read them or do we read them ourselves?

The Deputy Chair: Go ahead. You can read them and explain, if you wish to.

Senator Hartling: They’re pretty self-explanatory.

During its study of Bill C-65 . . .:

1. The committee observes that harassment and violence in the workplace are barriers to equality in employment. As such, the committee recognizes this problem as a human rights issue and emphasizes that every employee has the right to an employment free from harassment and violence. During the implementation phase of Bill C-65, the Government of Canada should underscore the responsibilities of employers under human rights law in its communication and education efforts.

2. The bill requires the ministers responsible for the Canada Labour Code and Parliamentary Employment and Staff Relations Act to review the legislative provisions relating to harassment and violence five years after the bill comes into force.

It doesn’t mean that we won’t be looking at this along the way but that we have a point that we take a look and see if there need to be changes.

The committee urges the ministers to use this opportunity to ensure the definition of “harassment and violence” in the bill adequately captures evolving forms of workplace harassment and violence.

We now know that there are new kinds of harassment coming up all the time, such as cyberbullying and Twitter. We have to be mindful that society is changing and that we need to keep reviewing these issues.

3. The Government of Canada should explore options to ensure that employers’ policies and training in relation to harassment and violence in federal and parliamentary workplaces include the provision of information to employees about their rights under the Canadian Human Rights Act, including their rights to seek redress under that Act.

That’s really important. We want to make sure that human rights are always front and centre in the bill and in our work because that is something that Canadians need to be proud of, that human rights are a part of our society here in Canada.

4. The committee urges the Government of Canada to develop a communication and education strategy for the implementation of Bill C-65 that makes absolutely clear that individuals are not prevented from seeking redress under any Act of Parliament in respect of protections or remedies that may be available pursuant to the Canadian Human Rights Act.

That’s very important.

Furthermore, based on the testimony heard from our witnesses, including testimonies from those who have been impacted by workplace harassment, we also make the following observation:

5. The committee strongly urges the Government of Canada to ensure that part of the training offered to employers and employees include bystander intervention training.

By that I mean that if you see something going on in your workplace or around you, that you actually do something; you don’t just brush it off. We all have a responsibility, when we observe something that’s not right, that’s not respectful in the workplace, to stand up. I think training would be helpful because sometimes you are re-victimized if you see it, so we need to help people understand what it means, how we can deal with it and where we go from there.

Those are the observations that I came up with. I respectfully submit them to you. Thank you.

Senator Ataullahjan: I have a comment, Senator Hartling. In respect of the testimony that we heard, I feel these observations are a bit weak. However, I will support you. The testimony we heard was very strong and clear, and I don’t think these observations do justice to them; however, I will support you in that.

Senator Hartling: Thank you.

Senator Seidman: I wasn’t part of your study. Observation number 3 says, “The Government of Canada should explore options to ensure that the employers’ policies and training . . . .” Why wouldn’t you say, “The Government of Canada should ensure that the employers’ policies and training in relation to harassment include the provision of information,” instead of exploring options to ensure?

Senator Hartling: That’s a better word. You’re absolutely right. I have no problem with that because I agree, you’ve got to make it strong. I think we’re absolutely overdue for training, and the stronger the wording the better. I have no problem with that.

The Deputy Chair: We can make that change.

Senator Hartling: Does everybody agree to that?

Hon. Senators: Agreed.

Senator Pate: I have an additional observation based on some of the testimony we heard that I’d like to propose. It’s this:

The committee urges the Government of Canada to commit to ensuring that at least 50 per cent of the persons deemed qualified to be appointed as competent persons be women and that any body or mechanism governing the qualification and appointment of competent persons contain members of marginalized groups.

That was one of the recommendations that came out.

Senator Ataullahjan: I strongly support that. Again, consistently we heard that, and we heard issues from some witnesses who said that some minority and marginalized women have a harder time with the groups. I strongly support that. I like that observation. Thank you.

The Deputy Chair: Any other comments?

Senator Hartling: I want to affirm that. We heard that too, particularly with Indigenous people. We heard a number of times about whether we would be able to access an elder or someone who understands their culture. It’s important that we make sure the people involved do have the understanding of the culture.

[Translation]

Senator Cormier: I’d simply like to say that I fully agree with the comments. I’m replacing Senator Brazeau as a member, and I attended the testimony yesterday. I must say to my honourable colleagues that we have an enormous amount of work to do here in the Senate of Canada and on Parliament Hill to address these many issues. I simply wanted to share this testimony since the act won’t solve everything, as Senator Hartling said. I believe that we will have to work vigilantly and diligently to ensure that harassment is not accepted in this place. Thank you.

[English]

The Deputy Chair: And the minister, in fact, made that comment when she spoke before our committee, that the legislation is not enough; it is a cultural change. Thank you for reiterating that, both you and Senator Hartling.

Any further comments?

Senator Ataullahjan: Thank you for saying that. I know this is just a start, but why not have a strong start. We have some words that are strong. We know legislation has to be implemented for it to be effective, but let’s have a strong start. Let’s do justice to our witnesses who took the time to come and share. I don’t know if you were there yesterday to hear from witnesses in camera, but it was heart-wrenching.

In good conscience, I have to support the amendments, Senator Pate, because otherwise it is just a waste of time if we don’t put amendments through because of the testimony that we heard. I feel very strongly about that.

The Deputy Chair: Any further comments?

Senator Pate: I want to thank Senator Hartling tremendously for the way in which you’ve organized this and shepherded this through. It is your life’s work. I want to thank you very much, not just for the work you did on this but all of the work you do all the time and for being so accommodating as well. Thank you.

Senator Hartling: I appreciate that. I thank everyone who has worked on this, the staff, the minister and all of us. This isn’t a partisan issue at all. This is an issue that we all need to take responsibility for. I think we can show Canada that we’re serious.

Senator Ataullahjan: Senator Hartling, I want to thank you because as the critic of the bill, you made this so easy for me. We discussed things and I think our hearts were in the right place. We said we had to do right by everything we heard. I want to thank you for making my job so much easier, and thank you for taking on this huge responsibility. Thank you for the work you’ve done.

The Deputy Chair: Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations being appended to the report, taking into consideration today’s discussion, with any necessary editorial, grammatical or translation changes as required?

Hon. Senators: Agreed.

The Deputy Chair: Is it agreed that any necessary consequential changes be made to the numbering of provisions and cross-references as a result of the amendments to this bill?

Hon. Senators: Agreed.

The Deputy Chair: Is it agreed that either I or the chair report this bill, as amended and with observations, to the Senate?

Hon. Senators: Agreed.

The Deputy Chair: I think we are finished. Thank you all very much for your help.

(The committee adjourned.)