Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 7 - Evidence
OTTAWA, Wednesday, November 26, 1997
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-5, to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, met this day at 3:24 p.m. to give consideration to the bill.
Senator Lorna Milne (Chairman) in the Chair.
[English]
The Chairman: With us this afternoon are representatives from the Human Rights Tribunal. Please proceed.
Ms Anne L. Mactavish, President, Human Rights Tribunal: I am pleased to have been invited to speak to you today concerning Bill S-5. I will begin with some brief comments and then will be pleased to respond to any questions you may have regarding the bill.
Before I begin my comments with respect to the proposed amendments to the Canadian Human Rights Act, I will observe that, as a consequence of my responsibilities as president of the Human Rights Tribunal, I, along with the members of the panel, am required to interpret and apply the provisions of the Canadian Human Rights Act in an impartial fashion. Therefore, it would not be appropriate for me to comment on the substantive changes that are being proposed to the law. I am most pleased, however, to provide you with my comments and thoughts on the proposed changes to the structure and composition of the Human Rights Tribunal itself.
[Translation]
By way of introduction, I would like to mention the proposed changes to the structure of the Human Rights Tribunal. I believe the new structure will enable the tribunal to hear complaints of discrimination filed under the Canadian Human Rights Act in a more timely and efficient manner.
[English]
Allow me to expand for a moment on the issues of timeliness and efficiency. Under the present system, all the members of the Human Rights Tribunal panel serve on a part-time basis. Most have other careers as university professors, consultants, lawyers, or in a number of other occupations. Consequently, when dates are set for hearings, we must take into account not only the schedules of the lawyers appearing before the tribunal, many of whom themselves have extremely busy practices, but also the availability of the tribunal members.
Work commitments of tribunal members may result in hearings being delayed or spread out over significant stretches of time. Similarly, the rendering of decisions is sometimes delayed as a result of the members' other professional responsibilities. The expectation is that the creation of a smaller body, the members of which will be expected to have a greater availability than is now the case, will result in cases being dealt with in a more expeditious fashion.
In addition, the creation of a smaller tribunal will allow members to develop greater expertise in managing cases and may assist in shortening hearings, with the attendant benefits and cost savings for all those concerned. The smaller number of members on the tribunal will allow for greater consistency in decisions and greater predictability in the law.
A body of 15 full- and part-time adjudicators should be sufficient to permit the tribunal to deal with cases in a timely fashion, having regard to our historical case levels and the tribunal's new responsibilities under the Employment Equity Act. I am comforted, however, by the inclusion of the provision in the bill that would permit the appointment of additional temporary members if the work load of the tribunal so requires.
The provisions of proposed section 48.9, which gives the chairperson of the tribunal the power to make rules of procedure, including rules governing the production of documents, pre-hearing discoveries and time limits within which hearings must be held and decisions must be made, will further serve to improve the efficiency of the process.
I should like to speak for a moment on issues of independence. The independence of the Human Rights Tribunal has been the subject of a number of challenges over the years, one of which is now pending in the Federal Court. The provisions of the bill requiring the tribunal to report to Parliament on its activities, the new section allowing for members to complete cases to which they have been assigned notwithstanding the expiry of their appointments and, in particular, the provision stipulating that compensation for members is to be fixed by the Governor in Council rather than by bylaw of the Human Rights Commission, as is now the case, will all serve to address a number of the concerns that have been raised by the respondent community and will further enhance the independence of the tribunal and the credibility of the process.
A minor but nonetheless symbolic change is that being made to the name of the tribunal itself. Our adjudicators are now technically part of the Human Rights Tribunal panel.However, if one were to identify oneself as a member of that body, most people would have no idea to what you were referring.
In practice, we are generally known to the public as the Canadian Human Rights Tribunal. The proposed amendment will bring public perception in line with reality and will give the public a greater sense of who we are and what it is that we do.
[Translation]
I will be happy to answer any questions committee members may have.
[English]
Senator Jessiman: At one of our earlier meetings, Senator Kinsella was concerned that of the 15 people who will sit on this tribunal, four must be lawyers and, in particular, the chairman and vice-chairman. Could you tell us why that is the case?
Ms Mactavish: I would be pleased to address that. In my view, it is absolutely essential that at least some of the members of the tribunal have legal training.
I must confess that I am a lawyer. I would never suggest that lawyers have any kind of monopoly on wisdom. Certainly, there are many non-lawyers who are very wise and, regrettably, more than a few lawyers who are not terribly wise. It would be helpful to understand the evolution of human rights cases over the years.
In the early days of human rights cases, they would last one or two days. The parties would frequently appear without the benefit of legal counsel and cases were very much fact-driven.
There is now a significant body of complex jurisprudence. Not including equal pay cases, which can go on for months and sometimes years, our cases last an average of two weeks and may involve thousands of dollars and some of our cases may involve billions of dollars.
Some or all of the parties are usually represented by legal counsel, in many cases highly experienced legal counsel with significant expertise in this field. Tribunals are frequently faced with a variety of jurisdictional, procedural and evidentiary issues which must be resolved in the course of a hearing. These can range from questions of constitutional division of powers issues to the application of legal principles such as res judicata principles concerning the appropriate use or limitations in the use of similar fact evidence, to give you three examples. These issues are difficult enough for those of us with legal training and would be very difficult for those without.
It is important to keep in mind that the tribunal is being asked to apply a law that the Supreme Court of Canada has declared on more than one occasion to be quasi-constitutional in nature.
As far as I am aware, we are perhaps the only administrative tribunal that has the power to order the government to cease applying a provision of a statute if it is determined that such an application would have a discriminatory effect.
That is not to say that the lay members of the tribunal have not made a tremendous contribution to the process because they have. I am sure they will continue to do so, particularly on valuable issues on finding of fact and determinations of credibility.
It is important to keep in mind that the statute is only stipulating that four out of a total of 15 members have that legal training and that only the chairman and the vice-chairman have the criteria that are normally used for eligibility for an appointment to the bench.
I hope that addresses your concerns.
Senator Jessiman: You spoke about being better organized with permanently placed people. Can you compare the cost of the tribunal today with what it is estimated to be under this statute?
Ms Mactavish: I can tell you specifically about our cost today but then I can only speculate about what will happen in the future.
Senator Jessiman: I should like you to speculate in light of the fact that there will be 15 members, some of them in full-time positions.
Ms Mactavish: At the present time, the reference level funding for the Human Rights Tribunal is approximately $1.5 million.
Senator Jessiman: Is that annually?
Ms Mactavish: Yes. That breaks down to approximately $500,000 in salaries and the remaining $1 million goes to operations and the running of hearings.
In addition, we receive from Treasury Board special supplementary funding to deal with the equal pay cases, which would otherwise exhaust our regular funding.
The amount of the supplementary funding will vary from year to year, depending on the number of those cases that are being held. This year our supplementary funding was $996,000, bringing our total funding for this fiscal year to approximately $2.5 million.
In terms of what we can anticipate for the future, there is no doubt there will be some initial start-up costs dealing with the changeover from the old system to the new system. Our best estimate is that will be approximately $250,000 to $400,000. That amount will apply to areas such as training for new tribunal members. We will be making some structural changes to our premises to have some additional offices for permanent members. Our letterhead will also change with our new name.
In terms of ongoing operational costs, there are a number of factors out there that are difficult to quantify. For example, if the number of appeals decreases or the number of cases sent back for re-hearing decrease because of a greater expertise, that will result in a cost saving. Similarly, if cases go faster because chairmen are more efficient and better at managing them, that will also result in a cost saving. It is difficult to predict exactly what that will be.
For all of those reasons, we do not anticipate that it will cost significantly more than it does now. I cannot be more precise than that.
Senator Cogger: Have you read the transcript of the previous day?
Ms Mactavish: I did.
Senator Cogger: In your experience, how many panels have been sitting at once?
Ms Mactavish: If you can give me a moment, I have some figures on that. Obviously, it varies from year to year.
Senator Cogger: For instance, do we have six panels sitting at once, or it three or five?
Ms Mactavish: No. It would be larger than that in terms of the panels going at any time.
The numbers vary on an annual basis. The high was approximately 60 cases referred from the Human Rights Commission.
Senator Cogger: In a given year?
Ms Mactavish: Yes. Last year, we had approximately 15 or 16 cases. This year, the indicators are that those numbers are increasing again.
Senator Cogger: Your panels are normally made up of three people?
Ms Mactavish: They can be either three or one under the current statute.
Senator Cogger: Of the three, would you try to have a lawyer, or does that happen?
Ms Mactavish: The practice of the tribunal is that cases are ordinarily chaired by lawyers. In the 19 years that we have been in existence, there has only been one case not chaired by a lawyer and that was the first case before the panel.
Senator Cogger: Assuming three-member panels, then under the amendment you could have, say, five panels sitting at once?
Ms Mactavish: In any given week. That does not mean that cases cannot go on. Often we will have a case that goes for one week and then another one two months later. Members are often handling several cases at one time.
Senator Cogger: That would be sufficient in order not to accumulate a backlog?
Ms Mactavish: There is a change under the new legislation. The presumption under the new legislation, as I understand it, is that there will be one-person hearings unless it is a matter of such complexity that it warrants three people being on the case.
Senator Cogger: In your experience, what has been the time delay in the recent past between the filing of a complaint and the disposal of same?
Ms Mactavish: I anticipated that question and I do have statistics for you.
If I may, I will start from the point of the filing of the complaint and go to the referral to the Human Rights Tribunal; that is, while the matter is in the hands of the Canadian Human Rights Commission. I looked at the statistics for the last two years. In 1996, the average delay from point of complaint to point of referral was 42.76 months.
Senator Cogger: Did you say forty-two months?
Ms Mactavish: That is right.
Senator Jessiman: Before it is referred to the tribunal?
Ms Mactavish: Yes, from the time the complainant files the complaint with the Canadian Human Rights Commission to the point at which it is referred to the Human Rights Tribunal for hearing.
To this point in 1997, the average is 46.5 months.
Senator Cogger: What is the time-frame from referral to the tribunal to disposal?
Ms Mactavish: I can give you two sets of figures. Approximately 18 months ago, we instituted a mediation program at the tribunal. I have statistics which deal from the time of referral to the time the case is resolved, and I also have statistics for cases which go through the full hearing.
Senator Moore: What was the 46.5 months period?
Ms Mactavish: That is from the time the complaint is filed with the Canadian Human Rights Commission to the time when the commissioner refers it to the tribunal for hearing.
Senator Jessiman: Give us the statistic for the time when the tribunal receives it to the time it is finally dealt with.
Ms Mactavish: From the time the case is referred to us to the time it is disposed of -- whether that be by way of decision or mediated settlement -- in 1997, to date, it is 4.42 months. In 1996, it was 8.83 months. Those figures do not take into account only the hearings. They also deal with mediated settlements.
Concerning the mediated settlements, we do not have sufficient data for 1997 cases to give you meaningful statistics, but in 1996, for cases that went through a full hearing, it was fractionally over 12 months from the point of referral through the hearing to the rendering of the decision. That is down from 15 months the year before.
Senator Cogger: Do you currently have a backlog of cases?
Ms Mactavish: We normally assign cases to tribunal members within two to three weeks of them being referred to us. They are then scheduled and begin the process.
Senator Cogger: Are your decisions published?
Ms Mactavish: Yes.
Senator Cogger: So there is a compendium of jurisprudence?
Ms Mactavish: They are published. They are available on Quick Law. They are reported in the Canadian Human Rights Reporter. We have just uploaded a web site. Although the decisions are not indicated there yet, they will be soon. They are generally available to the public.
[Translation]
Senator Nolin: It is not often that we have the pleasure of welcoming the president of a quasi-judicial tribunal to the committee. I will not resist the temptation to question you about your perception of the tribunal's independence vis-à-vis the State which satisfies your physical requirements and pays the salaries of tribunal members. As you no doubt already know, the Supreme Court recently ruled that when a provincial justice ministry makes available to a tribunal its facilities and all of the tools needed to function efficiently, in so doing it jeopardizes this independence. Do you feel that you are sufficiently independent of the executive branch of the Canadian government when it comes to exercising your quasi-judicial duties?
[English]
Ms Mactavish: I hesitate because, as I indicated in my opening comments, the issue of the independence of the Human Rights Tribunal is now the subject of a challenge in the Federal Court. Given that the matter is before the courts, I am somewhat reluctant to offer any views on that issue. I do not like to duck the question, but I must do so.
[Translation]
Senator Nolin: I might get the same answer from you, but we are currently examining a fundamental piece of legislation which sets out how the tribunal exercises its duties. Do you feel that this legislation goes far enough in safeguarding the tribunal's independence?
[English]
Ms Mactavish: Over the years, there have been a number of challenges to the independence of the tribunal on a number of bases. There has been an historical evolution of the Human Rights Tribunal which did not involve amendments to the statute, only changes in our administration to try to assert our independence to the greatest possible degree.
The majority of the remaining issues which have been the subject of challenges are addressed in Bill S-5, but not all of them.
Senator Nolin: Can you list the leftovers?
Ms Mactavish: There is one item which has been the subject of challenges and is now before the Federal Court. Again, I will not comment on it one way or the other, but will simply advise you that section 27(2) of the Canadian Human Rights Act contains a provision that permits the Canadian Human Rights Commission to issue guidelines setting out the extent to which and the manner in which any provision of the act is to apply in a particular case or class of cases.
Senator Nolin: Is that substantive guidelines?
Ms Mactavish: Yes, substantive guidelines. That is an issue which has been and is currently the subject of a challenge now pending in the Federal Court and is not addressed in Bill S-5.
Senator Beaudoin: Which case are you speaking of that is before the Federal Court? Who are the parties?
Ms Mactavish: The respondent bringing the challenge is Bell Canada and I believe that the complainant is the Canadian Telephone Employees Association.
Senator Beaudoin: I completely understand your reaction that since it is before the courts it should not be debated. As a committee of the Senate, we respect that.
You said that there are 15 members of the board, four of whom are lawyers. Is that a required minimum?
Ms Mactavish: The bill requires that there be a maximum of 15 members on the panel, although there is a provision for temporary members in addition to that. Of those 15, the chairman and the vice-chairman must be lawyers and members of the bar for at least 10 years. In the current system, no qualifications set out.
Senator Beaudoin: How many currently are lawyers?
Ms Mactavish: Currently, we have approximately 43 members. We have generally been running at approximately 65 per cent lawyers.
Senator Beaudoin: Has that always been the case?
Ms Mactavish: I believe so, although I have only been in the job for several years. I am not sure historically.
The Chairman: Are we improving it or not?
Ms Mactavish: It has worked.
Senator Jessiman: That is not to say that the full panel should be lawyers.
Ms Mactavish: That is a matter for the Governor in Council.
Senator Beaudoin: Is this a minimum?
Ms Mactavish: In the new regime, yes.
[Translation]
Senator Losier-Cool: I am interested in your views on the issue of employment equity for women and visible minorities. Do you feel that this bill will accommodate these minority groups?
[English]
Ms Mactavish: As I indicated at the outset, I am not comfortable talking about changes to the substantive law of human rights.
Senator Losier-Cool: In response to Senator Nolin you said "the majority of the bill but not all". I understood by that that you agree with the majority of the bill but that something could be added.
Ms Mactavish: I indicated at the outset that I would confine my comments to those sections of the bill that related to the operations and structure of the Human Rights Tribunal. In response to Senator Nolin's question, I mentioned that there had been challenges to the independence of the tribunal. I understood the senator to be asking me whether all the concerns raised by parties had been addressed and I indicated that the majority had but not all, and the guideline issue is one that has been the subject of challenges that is not addressed in the bill.
Senator Losier-Cool: On the work of the tribunal, why has it taken almost four years?
Ms Mactavish: That is not the work of the tribunal; that is the work of the Human Rights Commission. You heard from Madam Falardeau-Ramsay here a couple of weeks ago. That is her body.
For people who are not familiar with our process, perhaps I could explain this, because it confuses everyone. We are not dealing with a criminal law but a remedial law. To use the analogy of the criminal process, if you feel that you have been the subject of a wrongdoing, you go to the police and they investigate it. If the police feel there are grounds to lay a charge, the Crown prosecutors prosecute it. Those two roles are carried out by the Canadian Human Rights Commission. To continue the analogy, the Human Rights Tribunal are the judges; the commission is like the police and the prosecutors.
Senator Losier-Cool: Therefore, it is the commission that takes that much time.
Ms Mactavish: The 42- and 36-month figures are at the commission stage. The 12- and four-month figures that I gave you are at our stage.
Senator Lewis: You gave us some figures on the time it takes from the filing of a complaint to disposition. I presume that a great number of matters which come before the commission are dealt with by the commission and settled without having to go to the tribunal.
Ms Mactavish: I do not have the exact statistics, but thousands of complaints go to the commission each year. There can be any number of reasons why they do not go forward but, as I indicated, the number of cases which came forward to us last year was in the vicinity of 15, out of tens of thousands of complaints that they receive.
Senator Lewis: I presume that in some of these cases the commission would decide that there was no basis to the claim?
Ms Mactavish: I would anticipate that in the majority of cases that make it as far as the commissioners for decision, that is the conclusion.
Senator Lewis: And others, I suppose, which are probably settled?
Ms Mactavish: I expect so, although Madam Falardeau- Ramsay would be better able to address those issues.
Senator Cogger: I was struck by the numbers you gave us concerning the length of time it would take a matter to reach your tribunal. I will not ask you to comment on why or how. Later, we should discuss calling back Madam Falardeau-Ramsay to look into that particular matter.
Does the time-frame, which runs from 3.5 to 4 years, impede your work? From the human rights point of view, by the time a case reaches you someone has decided that a human right was tampered with. Therefore, four years to get a hearing before an adjudicating body is a very long time.
Ms Mactavish: We are the ones who make the final determination as to whether a right has been tampered with.
Senator Cogger: Yes, but there are sufficient grounds, so that still is a long time.
People move on, retire, die, or any number of things over a period of four years. Does the delay not make it rather difficult for you to have access to all the appropriate evidence, and so on?
Ms Mactavish: It is not uncommon for the tribunal to be faced with motions dealing with the issues of delay, witnesses not being available, evidence being lost, and so on.
Senator Cogger: I suggest to my colleagues that it may be wise to ask Mrs. Falardeau-Ramsay to appear here again to help us clear up this issue.
Senator Losier-Cool: We did not comment on this issue at that time.
Senator Cogger: No, we spoke about many other things.
The Chairman: I was horrified to hear about the lengths of time taken. However, the lengths of time are probably not contained in the bill before us. Perhaps the committee would agree that I should send a letter to the commission expressing our surprise and asking for clarification on the numbers.
Senator Cogger: I am not suggesting that we delay the work on Bill S-5 by pursuing another route. We should proceed with this. However, if we do not take the opportunity to ask Madam Falardeau-Ramsay to return, it may be another four or ten years before she appears here again, and by that time the delay may be eight or 10 years.
The Chairman: This probably does not relate to the issue before us. Perhaps we can talk about this later and settle it rather than call her back, perhaps delaying the entire process. Perhaps I could send her a letter, on behalf of the committee, to clarify the conflicting time periods that we heard about. I believe I heard the witness say that they are beginning to clean up their act and are now down to a waiting period of nine months. Nevertheless, I quite agree that we need clarification on that, Senator Cogger.
Senator Jessiman: Is the onus on an applicant before you the same as that on a plaintiff in a civil suit? Do they have to prove their case on a preponderance of evidence rather than beyond a reasonable doubt?
Ms Mactavish: No, the civil standard is applied. It is actually a shifting burden of proof, but it is the civil standard.
[Translation]
Senator Nolin: Ms. Mactavish, are many members of the tribunal reappointed when their term expires or is there a turnover?
[English]
Ms Mactavish: It happens frequently that members are reappointed. In addition, the terms of members are frequently extended, rather than giving them a full new mandate, to allow them to complete cases. There is nothing in our legislation now that permits members to complete cases to which they are assigned if their appointment runs out in the middle of a hearing. Therefore, the terms of members are frequently extended to allow them to complete their mandates.
[Translation]
Senator Nolin: I would like to draw your attention to clause 48.3 of the bill. I would like you to explain to us briefly how the complaints process will work at the justice department? Is this something new? Are similar provisions currently in place? Is this process patterned on one used by another quasi-judicial tribunal? How does this work?
[English]
Ms Mactavish: This is new for our legislation. I believe there are similar provisions in the legislation of several other tribunals. For example, the Immigration and Refugee Board has a similar process, and I believe that the proposed amendments to the Canada Labour Code contain similar provisions. This is being increasingly used in legislation governing administrative tribunals.
[Translation]
Senator Nolin: As president of the tribunal, how do you feel about this process?
[English]
Ms Mactavish: I hope we would never have to use it.
[Translation]
Senator Nolin: I understand. Even though this has only recently been brought into the legislation, the fact remains that this constitutes, in my view, an intrusion into the judicial process, although the intent may have been positive. Every effort is made here to protect judicial independence and to respect the rights of members. Have you considered how these provisions are going to apply to your tribunal?
[English]
Ms Mactavish: My sense is that it does contain a fairly complete code for dealing with disciplinary measures for tribunal members. I am not sure that I have considered how it would apply much beyond what is set out there. I assume that every case would be different and would have to be evaluated on its merits, but there is a range of options available from informal and mediated resolutions of less serious complaints to full inquiries before a superior court judge in more serious cases.
[Translation]
Senator Nolin: Do you receive many complaints at this time about the members of your tribunal?
[English]
Ms Mactavish: No. Very rarely have we received complaints.
[Translation]
Senator Nolin: When you do receive complaints, how do you handle them, without naming names, of course?
[English]
Ms Mactavish: The complaints are brought to the attention of the member and, depending on the circumstances, one must consider how they are dealt with. Generally, the first step is to bring them to the attention of the member. It would be a very unusual circumstance where we would receive a complaint.
[Translation]
Senator Nolin: Given the current non-legislative process, I understand that there are very few complaints. Do you make it an obligation on your part to inform the Governor in Council of the complaints you receive?
[English]
Ms Mactavish: Am I obliged now?
Senator Nolin: No. Are you imposing upon yourself the obligation to inform the Governor in Council?
Ms Mactavish: Under the current system?
Senator Nolin: Yes.
Ms Mactavish: It has never been appropriate in a case in which I have been involved.
The Chairman: Do you object to the provisions of the bill which provide regulating authority to the Governor in Council? Is this an item of concern to you?
Ms Mactavish: As I indicated, this is something of which we are seeing more and more with administrative tribunals. I have no objection to it.
Senator Doyle: Does the tribunal meet in the community where the complaint was lodged?
Ms Mactavish: Ordinarily, that is the case. It is left to the discretion of the tribunal where the hearing will take place, but unless there is a challenge and compelling reasons to deviate from that, we normally hold the hearing in the jurisdiction where the complaint was lodged.
Senator Doyle: Are these proceedings open to the public?
Ms Mactavish: Yes.
Senator Doyle: And to the press?
Ms Mactavish: Yes.
Senator Doyle: Do you publish what one might call a docket -- that is, a list of cases that are coming up and the dates and venues for the hearings?
Ms Mactavish: I am not sure that up until the last couple of weeks we have actually published them anywhere. They have always been available through the registry to anyone who asked. However, our web site is only now up and running and that information is available on the Internet.
Senator Doyle: How would the press be made aware of the fact that a particular case was to be dealt with?
Ms Mactavish: As a matter of practice, the Human Rights Commission issues a press release at the time that cases are referred to tribunal. If the press is interested, they generally follow up with our registry staff to find out the dates and locations of the hearings.
Senator Doyle: Are many of your hearings attended by the press?
Ms Mactavish: Yes, quite a number are.
Senator Doyle: Surely one of the great values of having a tribunal, apart from providing justice, is to educate the public about the risks of not showing discrimination in any way.
Senator Moore: Ms Mactavish, you indicated that the time which passed from referral to your tribunal to the decision or settlement date was, on average, 8.83 months in 1996 and 4.42 months in 1997. In one year, the time has been halved. Was that by way of a concerted effort to do so or was it just luck as a result of the nature of the case? How was that achieved?
Ms Mactavish: It was due to two things. I am absolutely committed to reducing the time at our level. It is one of the stated objectives in the reports that we make to the government on an annual basis. It is a commitment on the part of the tribunal to reduce the time as much as possible. We have looked assiduously for ways in which we can streamline our process to have the matters dealt with more quickly.
That is one factor, but it is a small factor. I believe that the real reason the numbers have come down so dramatically is as a result of the mediation process I mentioned earlier. An increasing number of the cases that we get are going to mediation. A tremendous number of settlements are being achieved through mediation. The mediation process takes place fairly rapidly after the point of referral and that is bringing our numbers down.
Senator Jessiman: When it is referred to the tribunal, is it like a trial de novo or is it like a hearing of an appeal?
Ms Mactavish: There has not been a trial at the time that it comes to us. There has been an investigation at the commission level, the commissioners have looked at the investigation, have considered the factors that they consider and have made a decision. Under the statute, the requirement is that they must be of the view that further inquiry is warranted.
Senator Jessiman: You start all over again?
Ms Mactavish: We then hold a hearing and the witnesses are called. Basically, we have nothing to do with what has gone before the commission. We are not normally provided with the investigation report. Normally, at the time of referral we receive a copy of the complaint form. We may receive some additional submissions from the parties if that is decided upon but, generally speaking, we start from square one.
Senator Jessiman: You then proceed as you would in a trial: The applicant puts in his case and the defendant, if there is a defendant, puts in his case?
Ms Mactavish: That is correct.
The Chairman: Clause 27 of this bill will create a new section to allow tribunal members or panels to take measures to ensure the confidentiality of some inquiries, where certain conditions are met, so there actually will be a further ability conferred on this new tribunal to hold meetings under confidential circumstances.
What do you feel about this provision?
Ms Mactavish: The current legislation provides that our hearings are to be held in public but the tribunal has discretion to hold some or all of the hearing in camera if circumstances require. That is a power that has been exercised sparingly, but it is similar to the power that the courts exercise. The presumption certainly is that the hearings are to be held in public.
The Chairman: You see this further clause, then, as not granting you any further powers than you already have? It is on page 20.
Ms Mactavish: Yes. That provision deals with the disciplinary proceedings as opposed to the hearings themselves.
The Chairman: It says the hearing will be in public subject to a confidentiality order. It is an entirely new section added to the act.
Ms Mactavish: I do not know that that changes significantly the existing section. We have a similar section in the legislation now. The statute now requires that the hearings shall be public but the tribunal may exclude members of the public during the whole or any part of a hearing if it considers that exclusion to be in the public interest.
The amendments simply codify what some of the considerations have been. It is not a significant change in our practice.
The Chairman: Thank you very much. I appreciate your coming before us today. You have answered some of our questions and have raised at least one more question.
I should like to point out to the members of the committee that according to the blues of Wednesday, November 5, Ms Falardeau-Ramsay said:
At the moment, it takes, on average, nine months from the moment a complaint is filed until the moment it is sent to tribunal.
She said it takes nine months. That is quite a difference from what we heard today and we need a clarification on that.
Senator Jessiman: Did you tell her that?
The Chairman: Yes. I told her that while she was still here.
Senator Jessiman: What did she say?
The Chairman: She cannot comment on information that someone else has on the tribunal.
Senator Jessiman: Where did she get her information?
The Chairman: Ms Mactavish, Senator Jessiman and the rest of the panel should like to know something else. When you came up with the figure of approximately 42 months, on average, from the time a complaint is made to the commission before the commission passes it on to the tribunal, from where did you get that figure?
Ms Mactavish: I did not do the arithmetic myself. We looked at complaints that had been referred to the tribunal in 1996 and 1997. We looked at the dates on the complaint forms and we looked at the date on which Madam Falardeau-Ramsay referred the cases to me, as president, and used those two numbers.
The Chairman: Thank you very much.
Ms Mactavish: I should indicate that my understanding is that there has been an effort on the part of the commission to reduce those numbers. Certainly, on the most recent complaints I have seen, the numbers seem to be getting shorter, but those are the statistics.
Senator Jessiman: Have any of the ones you have seen been as short as nine months?
Ms Mactavish: Not in the normal course.
Senator Jessiman: I should like to have Madam Falardeau- Ramsay back here.
The Chairman: This is a question on which the committee should like to hear some further information.
Would members of the committee accept something in writing from Madam Falardeau-Ramsay?
Hon. Senators: Yes.
Senator Lewis: Averages are very deceiving, though, are they not?
The Chairman: Yes, but there is quite a gap there.
Senator Cogger: Perhaps the way to go about this would be to provide Madam Falardeau-Ramsay with the appropriate portions of the testimony we just heard and say that members were surprised to hear the enclosed, and ask her if she would care to comment on it.
The Chairman: I agree.
Our next panel is from the Federally Regulated Employers -- Transportation and Communication. They include Dianne Richards, Manager, Labour Relations, B.C. Maritime Employers Association; Mr. George Smith, Chairman, Vice-President, Human Resources, CBC; Lorette Glasheen, Manager, Employment Equity, CPR; and Roger MacDougall, Legal Counsel, Canadian National Railway.
Please proceed.
Mr. George C.B. Smith, Chairman and Vice-President Human Resources, Canadian Broadcasting Corporation: We appreciate the opportunity to address this group today on a matter of significance to us. We should like to thank Ms Colette Charlebois for accommodating our time concerns. We were originally scheduled to appear much earlier, but we required more time to prepare.
I should like to preface my remarks by indicating that although members of this panel have individual company affiliations, we are representing FETCO. The brief we have provided to you and our prepared comments reflect the beliefs of our entire membership.
As well, our perspective today will be as practitioners -- that is, as the companies and individuals who will have to ultimately put whatever is enacted into legislation into effect in real workplaces all across Canada. We are most interested in dealing not in the abstract but in the concrete in terms of the impacts that we see as a result of certain of the amendments being proposed.
Finally, it is important to note that we have only a few concerns. For the most part, we accept both the intent and the language of the proposed amendments and are highly supportive of them. We do deal with issues relating to this act on a daily basis within our workplaces. While we are here to debate two significant amendments, the huge majority of the amendments are supported by us.
FETCO is comprised of 24 companies and associations which employ over 400,000 Canadians in companies with employees ranging from tens of thousands to tens. Therefore, we have a complete range of employers in our membership. As well, we are over 75 per cent unionized. We are very accustomed to dealing with unions in our workplaces. Indeed, FETCO was formed with a view toward interacting with government on matters of legislation and regulation that are so important in our workplaces.
We all have federal jurisdiction in common. It is important for us to point out to this committee that the federal jurisdiction is different from provincial jurisdictions and was created as a result of those differences.Our companies all operate in environments that cross boundaries. We have multiple work sites. We often have multiple bargaining units and multiple relationships with unions, and our companies are often 24-hours-a-day, 7-days-a-week, 365-days-a-year operations. Think of workplaces such as airports, television and radio stations and ports. These are not traditional, factory-type workplaces which might be more commonly associated with provincial jurisdiction. That is important to take into account as we review these amendments.
Finally, in the past decade plus, FETCO has worked with various government agencies and departments to collaborate on various pieces of legislation and regulation that affect us with the sole purpose of ensuring, to the degree possible, that what is legislated and regulated can be enacted in workplaces. We have registered our disappointment with both the Department of Justice and you, through our brief, that there was not more detailed and meaningful consultation on the amendments, particularly the ones that are in contention with us here.
The process was quite truncated. We believe that we could have contributed more to some of the issues that we will be putting before you today in terms of operationalizing the legislation.
The Senate will soon see the product of that collaboration in Bill C-19, which is the follow-up to Bill C-66, the revisions to Part I of the code. FETCO participated for over two years in the consultations surrounding that. That bill comes to you as virtually a consensus between management, labour and government on how that legislation should be changed.
I should like to focus now on the two key areas of the bill with which we have problems. I will begin with the area relating to the definition of "undue hardship".
[Translation]
FETCO members support the duty to accommodate as a social policy and because it makes good business sense.
Case law has defined the duty to accommodate and the criteria used in determining undue hardship. Those criteria include health, safety, cost, disruption of the collective agreement, efficiency of operation, effect on the quality of product or service and undue adverse effect on other employees.
Bill S-5 limits the criteria to three areas: health, safety and cost and fails to include other factors recognized by the Supreme Court of Canada and human rights boards or tribunals.
[English]
Our point here is that FETCO companies do accommodate and are regulated in that regard but need a workable regime under which to work. The reality is that we have been working within a regime which has been defined by courts and tribunals. That regime includes recognition of factors such as disruption to collective agreements and other rights of employees and suggests that those things should at least be considered when examining undue hardship.
This is of particular concern to FETCO members. As I mentioned, we often have multiple bargaining agents and multiple bargaining units and a complex array of seniority lists. Our reality is a very complex business working environment with a number of competing interests. We believe that in order for this legislation to be workable it must recognize that.
We are currently managing according to that regime and we believe that changing the regime will result in us having to redefine it at extreme cost to all parties. We are concerned that limiting the criteria to three factors may result in the Human Rights Commission taking the position that these factors are exhaustive. If they are not intended to be exhaustive, we believe the legislation should make that clear.
On pages 7 and 8 of our brief, we have identified to you proposed language which we believe would make the legislation more enabling and not restrictive <#0107> that is, "enabling" in the sense that there would be flexibility both for employers, employees, bargaining agents and, ultimately, tribunals, in interpreting accommodation.
Our second concern relates to victimless complaints regarding goods and services. We believe the federal sector is already more permissive than other sectors. In Ontario, for example, there must be an identifiable victim to file a complaint in the context of employment as well as in the context of services. In order to accommodate an individual, the first step required is to define the need or needs of that individual.
The proposed language would allow interest groups to file complaints requiring accommodation of services on an abstract level. Without an identifiable individual, it is very difficult if not impossible to assess the need and appropriateness of the required accommodation and the suitability of the solution.
We are regularly used to making accommodations on a case-by-case basis. Victimless complaints which require service providers to address hypothetical needs on an abstract level will result in unnecessary expenditures of time, energy and money, which must not be diverted away from dealing with real situations in our workplaces. We cannot identify any valid need for this amendment and request that it be eliminated from the amendments to the Human Rights Act.
From the perspective of the practical implications of the two areas we have identified, if we limit the criteria defining "undue hardship", we believe we are changing the rules of the game. For us, the rules of the game have been set out in the Central Alberta Dairy Pool case and other cases. These rules have been adopted by employers and are the criteria by which we govern ourselves and under which we make our accommodations. I would emphasize that we are making those accommodations on a regular basis.
We do not believe it is in the best interest of government, unions, companies and people with disabilities to have to redefine and re-establish the meaning of those criteria in the limited context in which they are presented. The investment that those parties have already made in defining the system of governance that is now working and workable would be lost by starting that redefinition process over again. We believe the current process has evolved to a point where it is working and understood by all the stakeholders.
In the case of allowing victimless complaints, we believe that large and unnecessary expenditures of time, energy and money would be diverted away from solving real problems and challenges while we are trying to deal with issues in the abstract when we have enough problems to deal with and are used to dealing with those on an individual, case-by-case basis.
In summary, we would propose the following.
[Translation]
Firstly, expand the undue hardship criteria to accurately reflect what has already been established by the Supreme Court of Canada and other human rights tribunals.
Secondly, eliminate any reference to victimless complaints in the area of goods and services until such time as it can be shown that the existing legislation is lacking.
[English]
What we want in the final definition is legislation that enables accommodation and balances the competing interests that exist in our complex workplaces.
The Chairman: Thank you very much for your presentation.
Senator Gigantès: I am not quite sure I understand what you have just told us about complaints. Is it that we should not spend money or time on victims' complaints? What are you telling me?
Ms Dianne Richards, Manager, Labour Relations, B.C. Maritime Employers Association, Federally Regulated Employers -- Transportation and Communication: We are not suggesting that. We are suggesting that we have invested a significant amount of time and energy <#0107> through the courts and government -- to identify the criteria by which we accommodate individuals in our workplace. We are suggesting that we use those criteria and not funnel them down or force those large criteria that have been established by the courts and the tribunals into the three criteria which we find in Bill S-5, namely, health, safety and cost, and then have to spend additional funds redefining what those criteria mean.
We are not suggesting that we not accommodate individuals, we are saying that we are already accommodating individuals. We want to be able to continue to do so. If the criteria are changed, our fear is that we will again have to spend significant time and energy in front of the courts and the tribunals defining what those three criteria mean.
Senator Gigantès: Are you saying that with the existing criteria -- not these three on which you would have to spend time explaining what they mean or defining what they mean -- there are no complaints?
Ms Richards: I am not saying that. There are still complaints, but we have an idea of what the rules are in terms of how we accommodate individuals.
Mr. Roger MacDougall, Legal Counsel, Canadian National Railway, Federally Regulated Employers -- Transportation and Communication: Perhaps I can help with the discussion.
There is no question that the current legislation and the proposed legislation allows and continues to allow individual complaints to be brought forward. We have absolutely no concern about that. There is also no question that the existing legislation and the proposed Bill S-5 state that victimless complaints can be brought forward by organizations on behalf of unidentified individuals in the workplace.
We take issue with one proposed amendment that goes further. It deals with the ability of organizations, not individuals, to bring complaints in the situation of a provision of services. In other words, if we examine what is happening today with the legislation and what would continue to happen in the case of an employee and an employer, there is a power dynamic between them. It is quite justifiable and reasonable that an individual may be concerned about bringing a complaint forward. Therefore, the existing legislation and the proposed legislation allows organizations to bring complaints on behalf of that individual. We have no problem with that whatsoever.
Where the legislation goes further, though, is that it proposes to allow customers to whom we provide services to bring complaints by organizations as opposed to individuals. The difficulty there is that on the one hand there is no power dynamic. Certainly, there is not the same power dynamic as between an employer and an employee. In order to accommodate those complaints by the customer, it is far more productive to have the actual complaint brought to our attention so that we can take positive steps to accommodate those needs.
Senator Gigantès: We have heard from people who support this new provision that often certain groups of customers and certain types of people feel intimidated or are in awe of the large corporation or of the major bank.
Someone was saying that if you complain and you are alone, you are likely to meet not with the bank manager but with a security guard who will show you to the door. Hence, the provision that we are talking about is one that would allow you to go en masse.
If a large group representing many people complains, it is likely to be heard a little better than, say, a young woman from a visible minority with little children in tow and maybe a speech impediment.
They tried to do this to me at Price Club. Of course, I did not say I was a senator. There was a poor, little old man with his grandchild, and they were pushing me around only this past weekend. I know how to handle such situations, but there are people who do not.
Mr. Smith: I do not know what the other representations were, but our experience as it relates to customers in those circumstances is that clearly it is not good business if the result is the one you have described. If an individual is intimidated by airline personnel and chooses, therefore, to fly with another airline, it simply is not good business.
Our concern is at the level of being able to get our hands around exactly what the issue is. Our experience has been that these issues are difficult enough to deal with when they are tangible and real and that they get more difficult to deal with when they are in the abstract. We have enough issues to deal with tangibly and upon which to properly focus our attention. Frankly, we are concerned about the prospect of a ghost out there that we will not be able to deal with tangibly in terms of the specific needs of the individual.
Senator Gigantès: Let us leave aside the mother corporation you represent, and let us stick with banks.
Let us say the person who is complaining is someone the bank would rather not have as a client, or someone whose social security cheque the bank does not want to cash because that person does not have an account. The bank does not know whether the cheque is genuine, and it would rather not have that person on its premises. Let us say that this person is a visible minority woman with a couple of children in tow and does not have a good command of the language. We have had people tell us there are actual cases where such a person is introduced to the commissionaire and she is shown the door. She does not speak to the bank manager.
Mr. Smith: It should be made clear that the banks are not amongst our member companies. For me to answer that question on behalf of a bank or banks would be unfair. I believe representatives of the banks will be making an appearance here.
The Chairman: We will be hearing from representatives of the banks next week.
Senator Gigantès: May we talk about airlines and about how they oversell? I have found myself being repeatedly told, "Sorry, you have a ticket, but there is no room on the plane because we are oversold." I will stay around. What do I care? I will miss a political appointment. However, suppose this is someone who is used to being hassled and does not like it. Airlines do that all the time, and you know it.
Mr. Smith: I am afraid that we have a slightly different perspective.
The airlines represented here have made many strides in the direction of accommodating individual needs. That is exactly our point -- namely, needs are individual. If someone is in a wheelchair, requires access to an airplane and perhaps lives in a remote community that is served by a particular type of aircraft that makes their accommodation difficult, the airlines are used to dealing with those situations on a "one of a kind" basis. They do their best to accommodate the needs of Ms Jones or Mr. Smith.
For a group, en masse, to identify an issue with the airlines, in this particular case, being able to deal with the individual circumstance, it would be very difficult for the airlines to deal with what they are used to dealing with one on one.
Senator Gigantès: When you overbook, do you consider the individual needs of the people you have bumped? For example, a person may have a job interview the next day and they may be late for it or miss it as a result of the airline overbooking.
The Chairman: Senator Gigantès, perhaps you are posing hypothetical questions.
Senator Gigantès: No, I am not. They are real. I have a young relative to whom this was done.
Senator Cogger: It is another victim who complained.
The Chairman: The group that appeared before us was the National Capital Alliance on Race Relations, and they spoke specifically about this victimless amendment. They said it was critical to address poisoned employment environments where the victim either cannot or will not come forward. As well, it will allow someone other than the victim to complain on their behalf. I should like to hear your reaction to that.
Ms Richards: In that regard, the legislation already allows for victimless complaints when it comes to employment. That is already in the legislation. The amendment specifically addresses victimless complaints with regard to goods and services.
We fully support victimless complaints when it comes to employment situations because of the power dynamics between an employer, an employee or a future employee, someone applying for a particular job at a particularly company.
The Chairman: You are already dealing with victimless complaints, in effect.
Ms Richards: In employment situations, yes.
Senator Gigantès: Not with customers.
The Chairman: Not with customers, but with their employees.
You were right, Senator Gigantès, your question was relevant.
Senator Jessiman: Did your group appear before the House of Commons committee on this bill?
Ms Richards: The bill never made it to committee. It was given first reading.
Senator Jessiman: It was never sent to committee?
Ms Richards: No.
The Chairman: This bill was introduced in the Senate.
Senator Jessiman: I understand.
Mr. Smith: It is a unique procedure for us as well.
Senator Cogger: I read your brief, and I have two points I should like you to address.
I tend to agree with respect to victimless complaints. As a matter of principle, it is not right to race over to the courts or to the tribunals to seek a ruling in the abstract.
When Senator Kinsella was with us at a previous meeting, he raised the idea of advance rulings, which are apparently available in other legislation. I do not suggest that advance rulings would be the flip side of the coin to victimless complaints, but on the other hand, an advance ruling is perhaps the next best thing.
Could you live with the idea of advance rulings? Would you prefer that to this approach?
Mr. MacDougall: Not at all. The concept of advance ruling that Senator Kinsella was referring to comes out of the New Brunswick act. There is a specific feature of that act allowing someone to go before a commission or a tribunal to seek an advance ruling on whether something is a BFOR, or a bona fide occupational requirement. We would be very intrigued and very supportive of that. We have not had much discussion among FETCO members about that, but it is certainly not something we find in the existing legislation or in Bill S-5.
I should like to follow up on one point that flows from that, a point Senator Kinsella raised regarding a BFOR, a bona fide occupational requirement. The concept is that if something is a requirement of the job, if it is truly bona fide and one cannot get around that, then in limited circumstances it might be all right not to take steps to make accommodation. The current legislation has that concept embedded in it. Bill S-5 takes us significantly away from that and, we would suggest, eliminates the BFOR concept. The proposed legislation states that the only time that one gets to a BFOR is after you have reasonably accommodated to the point of undue hardship; therefore, you have either accommodated or you cannot accommodate. In that case, the concept of bona fide occupational requirement goes out the window.
Senator Cogger: Concerning the criteria against which undue hardship is assessed or evaluated, when Madam Falardeau- Ramsay testified before us, I asked her the question and she indicated that she would go for your plan B, the second option to which you referred, whereby if a long list of factors is seen as undesirable, FETCO proposes that the concept of undue hardship remain undefined.
In other words, when asked, Ms Falardeau-Ramsay thought it was better to stick with the words "undue hardship" and strike out "with respect to health", et cetera.
Ms Falardeau-Ramsay's suggestion arose as a result of the fact that amongst other things it was discovered that, for instance, architectural or heritage considerations with certain buildings were taken into consideration because one could always fit them in under the criterion of cost. I do not disagree with the idea. I would sooner strike out those things. Were you aware that Madam Falardeau-Ramsay had made this suggestion?
Mr. MacDougall: Yes. I believe Professor Jackman suggested something similar with respect to at least one of the three criteria.
We would agree with that. The Supreme Court has spent literally decades defining what criteria should be applied in appropriate circumstances. Those criteria may be used in certain situations and perhaps only a small subset of them may be used in another situation, but the key is that at least they are there and available for consideration by the judicial body or quasi-judicial body charged with making a determination. Without that flexibility, we are faced with attempting to force-fit those other issues, which are real and substantial, into the three criteria. In our view, that is far less valuable to all parties than to go with the definitions that the Supreme Court has laid out after much consideration.
We would agree that we could take out the last five words in clause 10(2) of the bill.
The Chairman: Before we proceed, for the non-lawyers on the committee, would you explain "BFOR" again for us. Mr. MacDougall, it is obvious that you are a lawyer.
Mr. MacDougall: I was an engineer in my prior profession.
The Supreme Court has struggled with the bona fide occupational requirement for a good number of years. Rather than dealing with it just as a concept, I will give you some concrete examples. That may help.
The wearing of a hard hat may be a job requirement for safety reasons but it may conflict with the wearing of religious headgear. The courts have analyzed that particular case in terms of whether or not it qualifies as a bona fide occupational requirement. In other words, is it really necessary for the job that someone must wear a hard hat? Those are the interests that they balance: Namely, religion versus whether it is a necessary component of the job in order to do the job.
Senator Gigantès: You mean in order to do the job safely?
Mr. MacDougall: Yes. Does that explanation help?
Senator Gigantès: Yes, thank you. You should have said it that way the first time.
Senator Doyle: I am still on word definitions. I went through all of this and I cannot find a definition of "victimless".
The Chairman: Would you care to explain your version of what "victimless" means?
Senator Doyle: You may each have one.
Ms Richards: I understand "victimless" to mean that there is not a particular identifiable person. The complaint may be brought on behalf of a group of individuals by an organization. What we talk about when we have a victim, as opposed to "victimless", we would have an actual person that we could sit down and talk to. If we have person who says that they need a certain accommodation, we know exactly what that person's needs are and we will sit down with that person and reach an accommodation that works for that individual and with which he or she will be happy. When you have a victimless situation, it is in the abstract. In a hypothetical situation, we are unable to sit down with a particular individual and ask, "What works best for you?" We find that things work much better for the person who needs an accommodation if we can sit down with a person, an identifiable victim, if you will, and address his or her needs.
Senator Doyle: Could you not call that a group complaint or something like that? It seems to me a human rights code is an odd place to be dealing with a victimless situation. You can say there are victims but they are a large group and we are not dealing with a specific one, but to say "victimless", perhaps even to Senator Gigantès, means there is no victim.
Ms Richards: That is not what we are saying.
The Chairman: I believe that what would be meant is that there may be a complaint laid that some particular company is discriminating against black people. In that case, there is no one, single victim, but they are certainly identifiable.
Mr. MacDougall: We would agree that the nomenclature may not be the most appropriate, however, if we look at clause 23(2) of the bill, it covers the situation where no particular individual is identifiable as a victim. That is where the words come from in our presentation. We agree that there may be more appropriate words to use in the drafting of the legislation.
Senator Cogger: I wish to talk to you as a lawyer. Under that specific paragraph in which no particular person is identifiable as the victim, am I right in thinking that there may not be a victim at all?
Mr. MacDougall: That is exactly correct.
Senator Doyle: However, there may be.
Senator Cogger: There may well not be. How can you prove that there is?
Senator Doyle: If you are dealing with people who are black and you insult them, that is racial discrimination. They may not be able to say that it was a specific person but that a number of them were badly treated. That is not victimless.
If someone takes off their clothes and streaks, there may not be a victim that you can cite. However, you know what they have done, they have committed exposure, perhaps even indecent exposure. I think the law looks to me an ass when you have a victimless situation in the midst of a human rights bill. I am being a bit stuffy about this because it is usually the other way around. I am not being specific enough when I talk about other crimes.
The Chairman: I believe that this type of discrimination is already illegal as far as employment is concerned. However, this particular bill would make that applicable to the provision of services.
Mr. Smith: That is right.
Senator Gigantès: I will give you a specific case not exactly in your field but one which will illustrate what I am thinking about.
A former assistant of mine went to another city to teach. She was on probation for one year. The head of the particular department in which she was teaching asked to have sexual relations with her. She refused. He did not sign papers stating that she was adequate and she went to another school where she is now. I asked her why she did not complain to the Human Rights Commission and she said, "No other school would have hired me because I would have been identified as a trouble-maker."
I will give you another situation. Suppose you have a company that is downsizing. Would one dare to be identified as a complainer in such a company? Will you be among the first on the list of downsizees? Perhaps in that situation you would want to have some sort of group that argues your case without identifying you.
The wording you read to us did not say that there is not necessarily a victim. What we are talking about is there not being an identified victim. There are some victims who do not want to be identified.
Ms Richards: We agree with you on that point. The legislation already ensures that in employment situations the victim does not have to come forward by himself or herself. They can be represented by an organization. We do not have to have an identifiable person in an employment situation to file a complaint.
Bill S-5 deals only with goods and services. In the existing act, there has to be an identifiable victim. That is where the change is. We agree with the existing legislation when it comes to employment. Our concern is with the goods and services part of it.
Senator Gigantès: We come back to the banks, or to being bumped off an airplane.
Senator Lewis: I wish to deal with your observations on the criteria concerning "undue hardship".
I notice in your brief that you make a suggestion as to how the wording could be changed in clause 10 of the bill.
As an alternative, and rather than having a long list of potential factors, you propose that the concept of undue hardship remain undefined so that the criteria developed by human rights tribunals and the courts continue to apply.
Looking at clause 10 of the bill and referring to clause 15(2), what would you do? Would you take out the last five words of that paragraph?
Ms Lorette Glasheen, Manager, Employment Equity, Canadian Pacific Railway, Federally Regulated Employers -- Transportation and Communication: Exactly.
Senator Lewis: How is it now?
Mr. MacDougall: As it stands today, the legislation does not deal with issues of either reasonable accommodation or undue hardship. Those were concepts brought in by the courts in applying the legislation as it stands today. It is totally blank in those areas.
Senator Lewis: It strikes me that we would never be able to define absolutely the concept of undue hardship. It might be better to leave it to the courts.
Mr. Smith: The point we have been trying to make is that there has been an evolving body of law, jurisprudence and practice surrounding this which the parties are generally beginning to understand and work with and within which current accommodation occurs. To disrupt what has evolved to that point is, in a certain sense, to start all over in an area in which we think significant progress has been made.
Ms Glasheen: If you take the circumstances of people with disabilities alone in terms of accommodations and changes made, under the current framework over the last seven years there has been significant improvement. The incidence of people with disabilities as a proportion of new hires has more than doubled. This is in a period, as Senator Gigantès mentioned, when downsizing has occurred. As a proportion of total employment, the percentage has gone up over 70 per cent.
Keep in mind that those are official statistics that are underreported. There are definitional controversies surrounding them. There has been significant downsizing going on. The bar has been raised just within the last year and to take effect within the last month under the new employment equity legislation. With respect to employers being subject to audit by the Human Rights Commission, employers are already subject to audit by the commission with respect to human rights compliance.
In our estimation, we have a workable system that is evolving and starting to bear fruit. Increasingly, we think it has potential for the future, despite very difficult challenges that employers are facing in the marketplace.
Our concern is that if it is not broken, then why fix it?
Senator Lewis: I take it that your concern is with the addition of the words "health, safety and costs" and you do not know how those might be interpreted.
Ms Glasheen: Furthermore, we have a complex array of criteria that those three do not cover. One of our concerns is impact on co-workers. If we are discussing an accommodation arrangement in the workplace with one person requiring such an accommodation, it has impact on other co-workers.
That particular criterion is missing from these three. Where does that leave us? Our concern is that it will certainly slow down the progress we have been able to make today under very difficult circumstances. Perhaps it will create more controversy. Perhaps it will have an opposite effect from the good intentions behind this improvement. It is paradoxical. It is almost counter-intuitive that, by having fewer criteria, the impact may be to decrease the opportunities for arranging accommodation.
The impression is that employers' concerns around this are motivated to avoid improving the circumstances around which we make accommodations. In fact, it is the opposite. It is quite a paradoxical situation.
Senator Gigantès: I have a problem with the idea expressed that if the criteria remain undefined, that is better somehow than if they are defined.
Ms Richards: The criteria have been defined by the Supreme Court and by the tribunals. We are saying: Do not put it into the legislation. It is defined by the courts and the tribunals.
Senator Gigantès: This is my problem. Before we invented western democracy and the western justice system in 594 B.C., only the bosses knew what the criteria were. One major reform was to publish the laws so anyone could read them. I do not like the idea that your criteria are not published in a few, simple, all-encompassing categories or words representing categories, so that people can ask themselves questions about that.
My second point regards criteria. It has impact on another co-worker and you say that is not mentioned. Would you like that to be mentioned? Would you like to add more?
Ms Richards: We have suggested in our brief that the criteria be expanded. If there must be criteria in the legislation, we would like it to be expanded beyond health, safety and cost.
Senator Gigantès: These are not individual criteria when we are speaking of those three words, they are large categories under which there could be many criteria.
Ms Richards: Impact on fellow colleagues and on the workplace does not fit within health, safety or cost.
Senator Gigantès: The impact will either be a question of safety or health. Health includes stress.
Ms Richards: Let us suppose a situation where a female employee needs special accommodation to come to the job and that transportation is only provided Monday to Friday. That individual cannot work on Saturdays and Sundays. The co-worker must accommodate her and agree to work Saturdays and Sundays. If the co-worker is a single mother with two children who can only spend time with her children on weekends, she is impacted greatly in accommodating her disabled co-worker.
That is what we mean by an impact on co-workers in the workplace. Our concern is that if we eliminate that criterion, there may be a backlash when these accommodations are implemented. That criterion exists under the rulings of the Supreme Court. We would ask that that sort of criterion be included in the legislation. If you want to publish the laws, then include all the criteria that the Supreme Court and the tribunals have set out and by which we abide.
Senator Gigantès: Thank your for an excellent answer. Remember it is one "criterion" and many "criteria".
The Chairman: I wish to thank this panel for joining us.
Senators, we will now hear from representatives of the Council of Canadians with Disabilities.
Welcome to the committee. Please proceed.
Mr. Eric Norman, National Chairperson, Council of Canadians with Disabilities: I should like to take a few minutes to introduce to the committee the organization which will be presenting to you. It is important that you know what voice you are hearing. Tonight you are hearing the voice of people who have disabilities in Canada. Seventeen per cent of the population of this country identify themselves as having a disability of one type or another.
In eight of the ten provinces, there are organizations of people who have disabilities of different sorts. They organize themselves to promote their citizenship rights within their provinces. In many instances, their organizations are made up of groups within cities and municipalities across the provinces.
These eight provincial groups come together nationally. Along with national uni-disability groups, they form the Council of Canadians with Disabilities. This is the voice which speaks for people with disabilities in Canada to governments at all levels. CCD in particular speaks to the national Government of Canada. We speak on citizenship issues in most instances. This particular committee is of great interest to us.
Within CCD, we have a committee structure. One of the committees is the Human Rights Committee. Mr. Hugh Scher is the chairman of the Human Rights Committee. He will be leading our presentation, followed by the Vice-Chair of CCD, Ms Lucie Lemieux-Brassard.
Mr. Hugh Scher, Chair, Human Rights Committee, Council of Canadians with Disabilities: Honourable senators, you have heard who CCD is and from what voice we are speaking. I should now like to provide you with some history on how it is that we come before you today.
The duty to accommodate is a concept which has been viewed by people with disabilities as essential to our integration and inclusion in society. It is a concept which has been recognized and adopted throughout each of the provincial human rights legislative regimes. It is a concept which has been recognized and affirmed by the courts. It is a means which ensures that people with disabilities are provided with equal access and equal opportunities to the benefit of citizenship with respect to employment, transportation and all matters affecting goods, services and employment in Canada.
The Canadian Human Rights Act is the primary vehicle by which fundamental human rights of people with disabilities and all people in Canada are guaranteed. Outside the public sphere, of course, protection is provided by the Canadian Charter of Rights and Freedoms. People with disabilities are recognized under section 15 of the Charter of Rights and Freedoms. Stemming from section 15 of the Charter of Rights of Freedoms are the various human rights acts which have been enacted in the provinces and at the federal level as a means of ensuring equal access and opportunity for people with disabilities in all aspects of life.
As the courts have recognized, we are here dealing with a quasi-constitutional matter which is most integral and important to the fundamental day-to-day lives of people with disabilities in Canada. It affects how we work, how we travel and with whom we communicate -- all aspects of social, political and economic life for people with disabilities in Canada.
For the last 12 years, since the enactment of section 15 of the Charter of Rights and Freedoms -- the equality guarantee -- people with disabilities have been fighting to have enacted a duty to accommodate in our federal Human Rights Act. There has been some recognition of the concept at the court level, but there has not to date been a positive affirmation of the concept at the federal level through legislation.
That said, there have been several attempts made over the last 12 years to implement this concept. Most of those attempts have fallen by the wayside simply because the political agenda of the day has required that the matters be dropped or put over to another session.
The initial legislative initiatives put forward sought to include the duty to accommodate as a means of ensuring equal access and opportunity for people with disabilities. That was done in 1985. Throughout the term of the previous government, there was an effort by then Minister of Justice Kim Campbell to implement amendments to the Canadian Human Rights Act that incorporated the duty to accommodate.
Following that, our current government made an attempt toward the end of its previous mandate to implement a bill which would enshrine the duty to accommodate in the legislation of Canada. That, too, as a result of the election, was unable to be passed in the time allowed.
The current government has reintroduced that bill in an effort to ensure that the last 12 years of struggle to incorporate this most fundamental and integral right of people with disabilities in the Canadian Human Rights Act have not been to no avail.
The Council of Canadians with Disabilities believes that the formulation of the current bill represents the perspective of people with disabilities. It provides for a positive duty to accommodate people with disabilities subject to a standard of undue hardship. Undue hardship is defined with respect to health, safety and cost.
It is very important that undue hardship be defined, and we refer you for assistance in this regard to not only the bill, but also to the guidelines for accommodation and undue hardship which have been put forward by the Ontario Human Rights Commission. We ask you to turn your minds to those guidelines with respect to undue hardship. We feel that those do set out very clearly both the jurisprudence base as well as the human rights policy base for limitations on undue hardship that will ensure a meaningful duty to accommodate people with disabilities in society.
It is important that the undue hardship provision be clearly and carefully defined so as to not marginalize and diminish the most fundamental right of people with disabilities to accommodation. As I have indicated, without accommodation, people with disabilities are and will continue to be denied access to employment, to transportation and to the most fundamental elements of our very social being.
It is extremely important that we address our minds carefully to this issue to ensure that this right is incorporated in our legislative regime and is not trivialized by imposing a substantive "undue hardship" or "business convenience" or "operational effectiveness", to use some of the terms that have been previously discussed in looking at bills of this kind. That would serve to trivialize and negate the very purpose and effect of the amendment that this Parliament is trying to put in place today concerning this most fundamental right.
We do have concerns with the limitations of undue hardship, particularly with respect to costs. In an environment where we are attempting to reduce deficits, and corporations are cutting back on their staff, it is important that cost be clearly defined. Again, I refer you to the Guidelines to Accommodation, as established in Ontario, as a means by which the cost element of "undue hardship" can be clearly and effectively defined to ensure meaningful legislative reform by incorporating a duty to accommodate people with disabilities in Canada.
I would also refer you to some of the issues that have been addressed, which I think are most helpful. First, this bill clears up what has been one of the most complex areas of jurisprudence in the equality rights arena in terms of discrimination. That is, the bill recognizes that the duty to accommodate will apply, regardless of whether the discrimination being spoken of is direct or indirect discrimination.
Let me clarify that for you. The bill refers to the application of the duty to accommodate to direct discrimination -- that is, for example, where an employer says that people with disabilities need not apply. A policy of that kind, which is directly targeted at a group, namely, people with disabilities, for the purpose of discriminating against their inclusion and access, is clearly discriminatory and it is direct in that the policy is directed particularly at that group.
It also applies to what the courts have determined to be "adverse effect discrimination". For example, a law states that you must build homes that are 25 feet by 18 feet. The purpose of that law is to ensure that the homes are being done in a reasonable and rational way. However, what was not taken into account is the fact that that will not permit the inclusion of accessible accommodation or accessible washrooms for people with disabilities. The law in itself, though neutral, has a discriminatory effect on a particular group, namely, people with disabilities.
If enacted -- as we hope it will be -- this law seeks to clarify that area of the law and ensure that the duty to accommodate applies equally, regardless of the kind of discrimination.
The law provides further for a regulation-making power. We had some concern with respect to the regulation-making power that is provided to the Governor in Council. Our concern relates to the fact that if regulations are to be made with respect to undue hardship, those should not be done simply for the purpose of diminishing the right of accommodation. Again, I refer you to the guidelines established by the Ontario commission. It is a laudable and helpful format that could be used in assessing and providing regulations for the assessment of accommodation and undue hardship.
Having said that, one of the things we are pleased about in this bill -- that is, the commission itself cannot be the regulatory body -- is that it provides a means of consultation whereby regulations must be published before they are promulgated. In other words, an opportunity for input is permitted before the regulations have the effect and force of law. That is a positive step forward to ensure that the voices of people with disabilities are heard.
We would suggest that there be an affirmative commitment to ensure that people with disabilities are consulted in the regulation-making process with respect to undue hardship and any limitations on accommodation. The reason for that is obvious. It is imperative that what regulations come forward do not diminish and negate the very right that we are seeking to enact by way of legislation. Again, I refer you to the guidelines on accommodation to assist in this regard.
This bill does not address some of the broader amendments that we would hope to see at a later date. Neither social conditions nor the reference to income status as a ground of discrimination are included in this bill. Moreover, this bill does not pursue the more comprehensive and broader kinds of amendments that would be required to ensure that the human rights system at the federal level is effectively working to protect the rights of people with disabilities for all citizens of Canada. It does not ensure that the training of the investigators at the commission level is at a certain level to assure that. It also does not ensure that the regional offices are distributed in such a way so as to ensure that the commission process and the tribunal process are effectively established to meet the needs and concerns of the citizens of Canada who are facing discrimination.
We endorse this bill in its content with respect to the duty to accommodate, but we urge upon this committee and Parliament that a broader review of the Human Rights Act and the Human Rights Commission system and process be undertaken. This is required immediately and should be a pressing concern for this government as it carries through in its current mandate.
In conclusion, we are pleased to see that this government has taken seriously the concern of people with disabilities and is ensuring that our voices and participation in society is better ensured by providing for a right of accommodation that will enable that to occur.We wish to see that the limitations imposed on that right are not so narrow that they diminish the right but that they embrace the concept of accommodation and ensure that people with disabilities are afforded equal opportunities to all Canadians.
We look forward to a broader review. We hope that this amendment passes forward in its proper course and that we can look more comprehensively at the overall concerns with respect to the Human Rights Commission and the process.
I will now pass the issue of the Canada Evidence Act and the Criminal Code of Canada amendments over to my colleague, Ms Lemieux-Brassard.
[Translation]
Ms Lucie Lemieux-Brassard, executive member, Council of Canadians with Disabilities: For the second part of this presentation, I would like to put in context all of the initiatives that have been taken and consultations that have been held on amendments to the Criminal Code and the Canada Evidence Act. We have been involved in the process since the outset, that is since April of 1994 when the first working groups met.
I will not keep you very long. The legislation as drafted directly reflects the suggestions that we made during meetings, in particular, during one in Rockland in 1994, and the ongoing efforts that are being made in this area.
It is also important to put in context everything that we have heard. I am well-placed to do so, having served in 1996 as a member of the working group on the status of persons with disabilities.
Why are we still talking about this in 1997? For instance, there is nothing in the legislation preventing me from being a member of a jury, but I am automatically dismissed when my name is put on the list. The accessibility of certain locations is cited as the reason.
There is nothing that should prevent me or many other persons for that matter from serving on a jury. Yet, the fact of the matter is that we are denied this right.
Speaking as a criminologist, victims often tell us that there is no point in their filing a complaint because the police will argue that they will not be able to testify in court anyway.
By making it clear in the legislation, specifically in clause 6.1, that there is a duty to accommodate a person with a disability so that he can serve on a jury and to provide technical support to that person, the legislator is sending out a positive message that persons with disabilities are also citizens with the same rights as anyone else. This carries significant weight in our justice system.
The same holds for persons suffering from cerebral palsy. The original legislation contained a provision stating that there was a duty to supply them with the services of an interpreter.
According to the current definition, the services of an interpreter are used exclusively in the case of deaf persons. What about people suffering from cerebral palsy or some other condition that restricts their ability to communicate? Sign language interpreters cannot meet their needs and facilitate their communication with the outside world. Pursuant to the proposed changes to the Canada Evidence Act, a person may now either give evidence directly by means of a computer with the information appearing on a screen as the person communicates or may use the services of an interpreter or language facilitator.
We have no problems with the proposed amendments to the Criminal Code. They are fairly easy to understand. For several years now, we have been bringing up specific cases of individuals who have been the victims of sexual abuse. Because of the relationship of dependency that exists between the victim and the aggressor, the victim usually asks himself the following question: will there be someone there to get me out of bed tomorrow morning if I complain? Who is going to be there to feed me tomorrow morning if I complain? And so, people keep their mouths closed.
There are many documented cases of violence against women. However, there are few, if any, documented cases of such incidences involving disabled women. We suspect that persons with disabilities must also be suffering abuse. If we look at the guidelines, we see that anyone in a relationship of dependency is automatically vulnerable. Some research projects have specifically used focus groups or have relied on personal interviews in an effort to identify incidences of violence with the community. Two of the problem areas identified were home care and transportation services for the disabled. How can address these problem areas?
These facts have been observed firsthand. The least we can do is get the message across that it is no longer acceptable to sexually abuse those who are the most vulnerable because of their disability or limitations. Society will not accept this. That is the objective that this legislation hopes to achieve. It mirrors our concerns. This concludes my overview of the bill.
[English]
The Chairman: I should like to point out to members of the committee that we will have copies of the Ontario guidelines tomorrow so that we can follow through on what Mr. Scher has said.
Senator Jessiman: Mr. Scher, did you hear the evidence of the Federally Regulated Employers -- Transportation and Communication earlier this afternoon?
Mr. Scher: No, I did not.
Senator Jessiman: I will read you something from their opening statement. I can tell from your presentation that you are very familiar with this. They stated:
Case law has defined the duty to accommodate and the criteria used in determining undue hardship. Those criteria include health, safety, cost --
I can understand where you would certainly agree with health and safety, and I can see your problem with respect to cost because it could work against you.
They continued:
...disruption of the collective agreement, efficiency of operation, effect on the quality of product or service and undue adverse effect on other employees.
Is that statement correct? Is that as far as the case law has gone? Do they take these factors into account to offset other things?
Mr. Scher: That is not my understanding of the case law. I am not sure from which cases they derive that assertion. I would need more context, perhaps.
In my experience, some of these things are not referred to in the case law with which I am familiar. Certainly in the case law of the Supreme Court of Canada, some of these things would not have been included. References to business, convenience and things of that sort have been mentioned in the case law.
Senator Jessiman: What about effects on the quality of product or service, as referenced by the Federally Regulated Employers in their presentation?
Mr. Scher: Again, I am not familiar with those.
Senator Jessiman: I thought you might be. I will read the cases myself. Maybe I will ask that group to provide the cases.
They are saying that this case law is already out there. They are asking us not to codify it in such a restrictive way that we do not take into account what the courts have taken into account in the past. These employers are not living in a vacuum. They are carrying on businesses, and it costs money to carry on businesses. It would be very nice if everyone could have exactly what everyone wants, but at what cost?
You will get accommodation and you should have accommodation, but the courts have said that they take into account those three factors plus these other factors.
I thought your presentation was very good. As far as you are concerned, only health and safety should be taken into account. If it costs too much, that is too bad. You are not living in a perfect world, so you may have to take cost into account. The government at least has decided to take cost into account.
Mr. Scher: Absolutely. First of all, we must decide as a society and as a government -- as senators, this is your role -- whether the protection of fundamental human rights will be the priority of the government. Is the adoption of Section 15 of the Charter of Rights and Freedoms to be our guiding light, if you will, in contemplating decisions of this kind? Is our Charter, our Constitution, to be the basis on which we create the laws of our country and any reforms with respect to existing laws in our country? Is that to be the fundamental starting place? My suggestion is that it must be. That has been our practice and our history.
Going from there, clearly there are limitations on rights, and I believe that is what you are referencing. The case law has recognized that.
We do not have a federal duty to accommodate at this point in time, but if we examine the provincial human rights schemes and the derived case law, we will see that health, safety and cost are the specific criteria referred to in these regimes.
Senator Jessiman: Are you saying that the provincial statutes refer only to health, safety and cost?
Mr. Scher: They refer to health, safety, cost, and outside sources of funding, if any.
Senator Jessiman: They do not go further, as they suggest?
Mr. Scher: No. The codes do not do that. There is good reason for that, I suggest. If you want to protect the most fundamental human rights of Canadians, you must do so in a way which is respectful and which responds to those rights and limits them only insofar as is absolutely necessary. You must not diminish and dilute those rights to the point where they become meaningless.
That having been said, there were various proposals on the table. One of the bills that came forward, for example, had operational effectiveness as a limitation on the duty to accommodate. I have some problems with that. First, I do not know what it means. It is not in the existing human rights code regimes. It is not something which has been adopted by the courts readily, if at all. Therefore, to add that into the mix of human rights legislation and then provide the courts with that would be to provide for the further limitation of human rights in this country. That would diminish the most fundamental human rights. That would not be in keeping with our Charter nor with the principle of accommodating and including people with disabilities in societal life.
When others suggest they want to chip away at the duty to accommodate, we as citizens and legislators must come back to our basic question: Is the fundamental protection of human rights our starting place? If it is, then we must hold to that starting place. We must apply any limitations responsibly. We must not be vague in our directions to the courts.
In other words, health, safety and cost are guidelines. They provide a means of assessing reasonable undue hardship and that has been adopted by provinces across the country. Over the last 15 years there has been a great deal of jurisprudence arising from these limitations on fundamental rights.
The government must be careful in imposing any new limitations on rights because the courts do not have existing or adopted jurisprudence to follow. The legislators would be abdicating their responsibility to the people of Canada and passing it over to the courts. The government would simply be saying to the courts: Here is a vague, unclear statement of principle for you to determine and to which you may give content and meaning.
Courts should be interpreting the law. They should not be creating the law. That is the role of Parliament.
For these reasons, it is imperative that the limitations imposed are clearly understood by the legislators. The limitations must also be clear and limited in scope because the courts will, by the nature of the cases that come before them, interpret those in a manner that responds to the facts of the cases before them. Therefore limitations will necessarily be read in, I submit, by virtue of the cases that come before the courts.
It is important for legislators that the most fundamental principles be stated in a clear and meaningful manner. It is not the wish of our organization, nor, I am sure, is it the wish of Parliament to have unnecessary language or unnecessary restrictions that will merely cloud existing jurisprudence and provide a blank slate for courts to create law.
This Parliament has historically taken the responsibility of law-making seriously. I would urge it to do so in this case as well.
Senator Jessiman: Are you familiar with most of the provincial acts?
Mr. Scher: Yes, I am.
Senator Jessiman: In New Brunswick, I am told that an employer could apply, before even engaging anyone, for an advance ruling that his kind of accommodation is satisfactory. Are you familiar with that? I am referring to clause 10 of this bill which is amending section 15 of the act. It is the one we are talking about now which has to do with establishing that the accommodation of the needs of an individual or class of individual would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
Senator Kinsella, who is from New Brunswick, told us that, in his province, an employer who is asked to provide accommodation can go before the commission and ask for pre-approval on the accommodation. In that way, they do not have to build something that they thought would be satisfactory and yet still face a complaint later on.
You seem to be frowning. Are you not familiar with that section?
Mr. Scher: Are you referring to a reference ability to the commission?
Senator Jessiman: I refer to an advance ruling, just like you can do regarding the Income Tax Act.
Mr. Scher: I am familiar with that process.
Senator Jessiman: Would you have any objection to advance rulings?
Mr. Scher: It is problematic. The human rights law is there to provide a clear and unmistakable guideline for employers and employees alike. Allowing advance rulings, often without a factual basis, is the same as posing hypothetical questions to a commission. The Supreme Court of Canada has made it very clear that it does not wish to address hypothetical questions. The Ontario Court of Appeal has made it very clear that it does not wish to address hypothetical questions.
Senator Jessiman: This would not be hypothetical. I use, as an example, access to a building. Before completing a building, the owner wants to ensure the design is fair and accessible.
Ms Lemieux-Brassard: In Quebec we do have that process through the Office of Persons with Disabilities. At this point, even in terms of employment issues, the community is trying to go against what the Office of Persons with Disabilities wants to do on that issue in terms of amendment.
Since 1978, we have realized that there has been an obstacle. Landlords and employers have been saying that they do not want the problems and delays of accommodation; they I want to fill the position without going through that.
We must consider that if a person with a disability wants to be on a job and answer a call like everyone else, there are already programs, both federal and provincial, calling for external measures. They assess the needs of persons with disabilities who are ready to enter the labour force. They determine what type of accommodation will be required. They serve as an on-the-job intermediary when the hiring is done. They then provide the service to the employer. It is already there.
The problem we should avoid -- and it is the same preoccupation with the cost issue -- is not to create any more obstacles for us to be citizens like everyone else. There are already plenty of obstacles. Why must we go to human rights tribunals, federal or provincial, to be told that, yes, we have faced discrimination? Do we have to wait for three years to get someone to confirm what we already know? During that time we still are not working. The problem, the obstacle, is still there. That is what we want to avoid.
If it is to be accommodation, then it should be something like a door opening and not an obstacle. We are still asking for this accommodation because the court decisions have not been implemented. We still have to argue piece by piece every time we want it.
Senator Gigantès: I wish to return to an issue raised by Senator Jessiman. One of the witnesses from FETCO, Ms Diane Richards, spoke of the impact on fellow workers. She gave an example in which she said if you accommodate a woman who can only work Monday through Friday and you ask another woman to work Saturdays and Sundays, the woman working Saturdays and Sundays will not be able to see her children on those two days. That was given as an example of impact on co-workers.
Does that not come under cost? Could that not be solved in a way that would accommodate both women? Is cost an overall criterion under which that problem could be solved?
Ms Lemieux-Brassard: I believe it does. If the employer is willing to provide adapted transportation on weekends, then there is no obstacle for the person with a disability to do the same as the other employee. That would be an accommodation. The problem is you do not get adapted transportation on weekends in order to go to work. We do not even get it to go to the library.
That is where the problem lies. I remember the issue was raised in a court. The question was, can the employer in the accommodation program not cover it? That is why we have problems with the cost issue. If the employers start saying that accommodation is too expensive, then you must make the choice. I am willing to go to work like my colleague. I do not need to be pushed aside because I cannot wheel myself to work or because I do not have the money to obtain an adapted van or because the transit system is not providing me with the proper transportation. Why should I be penalized for not having an adapted job description? Why should I be kept from a job that I can do because my wheelchair does not fit in a regular car and because there is no adapted transportation system offering service on Saturday?
Why should I have to prove that I can do the job when the problem is the unavailable transportation? When we talk about the duty to accommodate we have to ask: What is the need? For that person with all her abilities and all her disabilities, what is required to compensate for the functional limitation and assist her in carrying out her job description? Where is the obstacle and what can be done to address that obstacle?
That is what we call "situation of handicap". I am not handicapped in front of you today. I have a disability. I have functional limitation. If I could not have obtained transportation to come here, I would have faced a situation of handicap in not meeting you. However, that is not the case because someone, somehow, provided me with the transportation. That did not stop me from doing my job today which is my volunteer work in speaking to you. Why should I be stopped because I do not have transportation?
We have a serious preoccupation with the issue of cost. We are afraid that we will be told that we cannot be hired because it will be too expensive for the employer to pay for special transportation on weekends. That is a perfect example of what we fear.
Senator Gigantès: Are those three criteria -- health, safety and cost -- broad enough to cover all your problems?
Mr. Scher: I would again refer you to the fact that the provincial human rights regimes use those three criteria as their base. They have served in the provincial context quite well.
That said, I do not think there is a need for additional criteria to deal with the issue. As has been indicated, if an expansive definition of these limitations is permitted, then, in effect, you negate the right. Ms Lemieux-Brassard has identified what needs to be done: The need itself must be identified. What is the purpose? Why is the accommodation required?
Once that is done, I think you will realize that most often cost is not even a factor. There is a huge belief -- I suggest a mistaken belief -- that the accommodation of people with disabilities is extremely costly. The reality is that most accommodations for most people with disabilities can be achieved simply by increasing and enhancing communication within a workplace. There has to be an understanding of the need and of the barriers to meeting that need.
Once that happens, once the communication takes place and once the barriers are identified, generally, the costs, if any, of removing those barriers, is quite minimal.
Typically, cost is not a problem in accommodating people with disabilities. Where there are major costs associated with an accommodation -- such as, for example, putting in a ramp -- those are typically systemic accommodations which do not apply only to people with disabilities but to citizens generally and to large numbers of people with disabilities.
In effect, they are prescribed by law to ensure that, systemically, the barrier is removed and the access is provided to ensure that people with disabilities are afforded equal opportunity and equal right.
Generally, cost in terms of accommodation will not be a factor in providing meaningful accommodation to people with disabilities.
It is important for this committee and for Parliament when looking at this issue to realize that the cost of accommodation is typically not a significant one, although the myth of the cost of accommodation is a very large one.
Senator Cogger: I would compliment Mr. Scher and Ms Lemieux-Brassard for their presentations.
Mr. Scher, in response to Senator Jessiman, you are indicating that you are not comfortable with the concept of an advanced ruling because of the hypothetical nature of the question posed.
Then presumably you would be in disagreement with the section covering what another witness has called the "victimless complaint." I refer to clause 23.(2) of this bill which seeks to amend paragraph 40(5)(b) to allow for the lodging of a complaint:
...in respect of which no particular individual is identifiable as the victim...
Is that not the perfect example of your hypothetical question?
Mr. Scher: No, it is not. Even though there is no specific individual associated with a specific complaint, systemic discrimination evolving from systemic barriers, barriers which affect a large number of people, do not necessarily require an individual complainant. In fact, the commission has even now an ability, to some extent, to delve into systemic barriers without the need for an individual complainant.
It is not a hypothetical situation. If a real barrier is widespread, affecting a large number of people, the commission may deem it of significant importance on its own investigation to pursue the matter and to see that barrier removed. It is not always necessary to have an individual complainant when we are dealing with what is a systemic barrier.
It may often happen that we have an individual complainant in an individual setting, and the remedy applied by the commission applies only to that individual setting. This provides that the remedy which might otherwise apply in the individualized setting should be provided on a systemic basis so that the law applies equally throughout Canada and so that the barrier which is present equally throughout Canada is removed.
It is somewhat misleading to suggest that there is a victimless complaint. That is not usually the case. Usually this type of case comes about after an individual complainant raises the complaint and then the commission is empowered to seek out that same barrier in a host of other settings and to ensure that the barrier is removed. Then individuals across Canada do not need to come forward with their own complaints, jamming up the Human Rights Commission system, because a systemic solution is provided for them.
This is a necessary provision. It ensures that the systemic remedy can be implemented and that a commission can, on its own accord or on the complaint of an individual, seek to remove systemic barriers to the full participation in society of people with disabilities. For that reason it is very different than what I was referencing earlier.
Senator Moore: Mr. Norman, in your opening remarks you mentioned that eight of the ten provinces have citizen organizations representing Canadians with disabilities and that they meet nationally as the Council of Canadians with Disabilities. Is that correct?
Mr. Norman: That is right. There are eight provinces involved and six uni-disability national groups. That would be national groups concerned with only one type of disability, such as the Thalidomide Victims Association of Canada. We are an umbrella organization. We represent the Coalition of People with Disabilities, Newfoundland and Labrador, centred in St. John's; the Voice of People with Disabilities in Regina, Saskatchewan; the British Columbia Coalition of People with Disabilities.
As a matter of fact, I have some pamphlets here which list all the members. There is some background on the 20-year history of CCD.
At the present time, there are two provinces which do not have cross-disability representational groups. In New Brunswick, a Premier's council is doing some of the work that a cross-disability group would do but not at real arm's length. The province of Ontario had a very active group, almost a prototype organization for people with disabilities, called PUSH Ontario, People United for Self Help in Ontario. That organization at the present time is undergoing some difficulties. It is in most parts of the province disbanded. We are looking to see Ontario rise as a phoenix with a much stronger organization.
Senator Moore: Yours is the national umbrella group?
Mr. Norman: Our group is the national group of cross-disabilities.
Mr. Scher: For those of you who may not be familiar with our past, the Council of Canadians with Disabilities is derived from the former coalition of provincial organizations of the handicapped which existed through the late 1970s and the 1980s. That was the main national consumer organization of people with disabilities. The "Council of Canadians with Disabilities" is a new name for that organization. It is stemming from 1992 when it renamed itself to really keep time with the changes in terminology. Our history actually dates back about 1979.
Senator Lewis: We have been talking about the definition of "undue hardship" and the problems which may arise.
I notice in clause 10 of the bill that section 15 of the present act will have added to it subsection (2) which uses the words "undue hardship."
The proposed section 15(3) reads:
The Governor in Council may make regulations prescribing standards for assessing undue hardship.
That seems to anticipate that the Crown is going to prescribe some basis for assessing undue hardship. I do not know exactly what they mean by "prescribing standards," but it seems to imply that there will be criteria set out in the regulations to cover that. We do not know what those regulations will be, but it seems to anticipate that the words "undue hardship" would be explained in some way.
Mr. Scher: Yes, they would be more clearly defined. That is the same wording found in the Ontario Human Rights Code. That is one reason why I point you to the guidelines for accommodation and undue hardship which have been established in Ontario. Although they are not in regulatory form, they are in the form of guidelines established by the commission. They have been adopted by the courts and, although they do not have formal status as promulgated regulations, they have been interpreted and given the effect of a quasi-legislative enactment and have been given almost the same effect as regulations.
We are suggesting that you turn your minds to those guidelines as the fundamental bases which have been used for assessing undue hardship throughout Ontario and, I suggest, the bases used throughout much of the jurisprudence both throughout Ontario and Canada.
For that reason, I believe they form a good basis for discussion and implementation in terms of the standards for undue hardship at the federal level. They are appropriate and would apply. I urge you to consider them carefully.
Ms Lemieux-Brossard: I want it to be understood that we do not want more criteria. In an ideal world, we would not ask for any criterion because our experience has been that such criteria serve as obstacles.
Our hope is that if those two criteria are included, we will be actively involved in defining the cost issue to the most basic need which will neither serve us nor work against us, and also in looking at source of income. That criteria is not included. We have already said that that is a criteria which should not be used but could be covered.
That is something we should talk about. If we have a disability pension, that is the source of income and we will not be able to get an accommodation for work. Then we will get nothing to compensate for the additional costs.
There are many different situations where that issue arises. We are hoping to be heard in order that we can express in more detail all of our concerns.
The Chairman: The proposed subsection 15(5) covers this point precisely. It reads:
The Canadian Human Rights Commission shall conduct public consultations concerning any regulation proposed to be made by the Governor in Council under subsection (3) and shall file a report of the results of the consultations with the Minister within a reasonable time after the publication of the proposed regulation in the Canada Gazette.
This is a requirement. It does not say with whom he shall conduct these public consultations, but you may be assured that when the minister appears before this committee he will be asked.
On behalf of the committee, thank you for coming to speak to us today.
The committee adjourned.