Legislative Assembly of Ontario

EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI

CONTENTS

Monday 22 November 1993

Employment Equity Act, 1993, Bill 79, Ms Ziemba \ Loi de 1993 sur l'équité en matière d'emploi, projet de loi 79, M^me Ziemba

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

*Chair / Président: Marchese, Rosario (Fort York ND)

Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)

*Akande, Zanana L. (St Andrew-St Patrick ND)

Chiarelli, Robert (Ottawa West/-Ouest L)

*Curling, Alvin (Scarborough North/-Nord L)

*Duignan, Noel (Halton North/-Nord ND)

*Harnick, Charles (Willowdale PC)

*Malkowski, Gary (York East/-Est ND)

Mills, Gordon (Durham East/-Est ND)

*Murphy, Tim (St George-St David L)

Tilson, David (Dufferin-Peel PC)

*Winninger, David (London South/-Sud ND)

*In attendance / présents

Substitutions present/ Membres remplaçants présents:

Carter, Jenny (Peterborough ND) for Ms Harrington

Fletcher, Derek (Guelph ND) for Mr Mills

Also taking part / Autres participants et participantes:

Beall, Kathleen, legal counsel, Ministry of Labour

Ministry of Citizenship:

Ziemba, Hon Elaine, minister

Alboim, Naomi, deputy minister

Bromm, Scott, policy analyst

Stockwell, Chris (Etobicoke West/-Ouest PC)

Clerk / Greffière: Bryce, Donna

Staff / Personnel: Joyal, Lisa, legislative counsel

The committee met at 1544 in room 228.

EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI

Consideration of Bill 79, An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women / Loi prévoyant l'équité en matière d'emploi pour les autochtones, les personnes handicapées, les membres des minorités raciales et les femmes.

The Chair (Mr Rosario Marchese): Let's call the meeting to order. We're continuing the clause-by-clause. We're at clauses 11(1)(d), (e) and (f) and it's a PC motion. The number of that is 35 at the top of the page.

Mr Chris Stockwell (Etobicoke West): If we could stand our motions down till 4:30, our critic's coming in later. If you could move on, I'd appreciate it.

The Chair: All right. Mr Stockwell is moving unanimous consent to stand clauses 11(1)(d), (e) and (f) down until we get the critic to come and move that. Is that all right with everyone? Okay.

Moving on to subsection 11(1.1), it's a government motion.

Mr Derek Fletcher (Guelph): I move that section 11 of the bill be amended by adding the following subsection:

"More than one plan

"(1.1) An employer may prepare more than one plan in accordance with the regulations, for the purpose of meeting the employer's obligations under subsection (1), so long as each plan meets the requirements set out in subsection (1), and so long as, together, the plans cover all of the employer's employees and all of the employer's workplaces."

This amendment achieves two related purposes. First, it establishes standards for the development of an employment equity plan. The principles of employment equity enumerated in section 2 of the bill will become the principles upon which an employment equity plan must be developed.

Second, this section, coupled with the provisions of section 24 of the bill, the orders of the commission, clarifies that the Employment Equity Commission can evaluate the quality of an employer's qualitative or numerical goals as part of a review --

Ms Kathleen Beall: That's the wrong one.

Mr Fletcher: Is that the wrong one? Oh yes, I'm sorry; I'm on the wrong one. Let's strike that from the record, okay?

This bill requires an employer to prepare an employment equity plan for its workforce. This amendment provides that an employer may prepare more than one plan for its workforce as long as all the employees and all workplaces are covered, each plan complies with the provisions respecting the content of employment equity plans and the plans comply with the provisions of the regulations.

As a result of this amendment, there are several technical amendments which will make the language of the bill consistent: section 8, subsection 11(2), section 12, subsections 13(1) and (2), section 15, subsections 24(1), 25(2), section 26, and subsection 28(2).

Mr Stockwell: Which plan will they stick to?

Mr Fletcher: They'll stick to all of their plans.

Mr Stockwell: Oh. Why wouldn't they just have one plan? I don't understand. You say they allow them to put more than one plan in. Can those plans be different?

Ms Beall: Perhaps I can assist. What this section contemplates is that the employer can have more than one plan, but for each part of the workforce there would be only one plan. The workforce can be divided up into parts. For example, if an employer has two different locations for his or her workforce, they may want to have one plan for one location and one plan for another location. The employer would have only one plan for each part of the workforce, but the workforce can be divided up so that you end up having more than one plan in total. The employer would have to comply with each and every plan.

Mr Tim Murphy (St George-St David): I want to ask a couple of questions. We moved, I think, an almost identically worded amendment and subsequent to that had some inquiries from a number of groups about how it was going to work out in terms of the interaction between the plans. More particularly, one of the examples that came up, I think, during the public hearings was that an employer which had two separate workforces under its broad ambit would be a related employer and clearly, therefore, be one employer for the purposes of the Employment Equity Act. But if in one case it had a primarily female workplace and in another a primarily male workplace, the concern was obviously that if you put the two workforces together they could argue, "On the face of it, we've achieved equal representation of women in any event," but when you analyse it separately, clearly one workforce needs a considerable amount of work. The employer could have a separate plan for each workforce, but ideally the goals of employment equity would want you to push those two workforces together to get a more equitable distribution.

The question is, how does the opportunity to have more than one plan cover that kind of circumstance?

Mr Scott Bromm: The circumstance would be covered because, although we would allow the employer to have more than one plan, that employer is still treated as one employer for employment equity purposes. For the purposes of the act, the composition of your workforce and how you address your workforce must be done for each occupational group in each occupational level.

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If you have a predominantly female workforce and a predominantly male workforce in two separate locations, you could not use the female workforce to offset the male workforce because that would not be showing your representation at each occupational group in the entirety, so those numbers couldn't offset each other in that way.

Also, when you have a predominantly female force in one area and possibly a predominantly male force in the other area, you would also address the movement between the two, because of the requirement of addressing and identifying barriers of entry into each of your occupational groups and eliminating those barriers if they exist.

Mr Murphy: Is that impacted at all by different geographic locations for that workforce? For example, one's in Toronto and one's in -- does Markham get you outside the geographical comparison? I'm not sure. In any event, with two separate geographical locations where the comparators are different, would you still be forced to put all your workforces together, in one sense, and yet analyse them separately in another?

Mr Bromm: On a numerical basis, you are not numerically the employer. Although the employer at the end of the day is looked at in his or her workforce as a whole, when setting and achieving goals, the focus is on an individual geographical area. So as far as setting your goals is concerned, you do focus on a geographical area.

But again, in the evaluation stage, when the performance of the employer is looked at, it is looked at in its entirety, and movement is not something that is looked at in a numerical sense. So if there is movement between geographical areas, then you would still have to identify any barriers that take place with respect to that movement and eliminate those barriers.

Mr Murphy: Can you identify for me -- it may be there and I don't know where it is; that's quite possible -- where the discretion that you're pointing to about those different analytical categories is derived? What's the section that gives that power to the commission? It may not be you, Scott; it may be a parliamentary assistant or others.

Mr Bromm: The one area it shows up in is the numerical goal-setting section, which is contained in the regulations, at this point the draft regulations, which tells an employer how to set numerical goals and which tells you to focus on geographical areas. I believe it's section 24 of the draft regulations. I can check.

Mr Murphy: You've read them before, obviously.

Mr Bromm: A couple of times. Actually it's sections 21 and 22, which focus on what your geographical area is, and 24 tells you how you actually set your goals. Those are the only sections that address specific geographical areas, so the implication is that for other employment equity purposes, you would not look at the geographical area but at the employer in its entirety.

Mr Alvin Curling (Scarborough North): I can see that this amendment the government has put forward is in response to the concerns of many of the employers. Specifically, I think it was Stelco that came in and expressed its concern that it is necessary to have more than one plan. With the resistance that we saw there, I thought this would have never happened. As you'll notice, later on, as you proceed to see the Liberal amendment that we have put forward very forcefully -- I noticed that somehow the government had come on side in reflecting the exact amendment that we had done. I am not saying this in a negative, critical way, because in fact I am glad you are coming on side in understanding this.

This is very helpful towards saving time, especially when we start to listen to the people who really have to implement these plans. I think the employers who had those kinds of concerns are a little more pleased about this.

We, as I said, on a number of occasions raised this issue, to see that this changes. This is consistent within your changes or your amendments coming down, Madam Minister. I'm sure that it will run rather smoothly, but I wanted to say I am pleased that this is moving in the right direction, that this was some of the concern that we had expressed. I regard this as a positive move in that we are looking at more than one plan, to make them many plans. Those are the only comments I have for this amendment.

Mr Stockwell: There's nothing to say that certain quotas can't be made right across the entire areas. You're just saying you're giving the employer the opportunity to set different quotas for each area, and if -- no?

Mr Fletcher: We're not setting quotas.

Mr Stockwell: Just a definition, okay.

Mr Fletcher: That's your definition.

Mr Stockwell: Then I'll use my definition.

Mr Fletcher: You use your definition. That's not the government's definition.

Mr Stockwell: Okay, but you're not suggesting for a moment that they necessarily -- they can in fact have one plan for across the entire province, and if they like they can have 15 plans to meet these objectives, as you call them.

Mr Bromm: That's correct as far as the number of plans that they actually establish. It is completely up to the employer to decide. If it's a single employer, he can choose to have a single plan, or a number of plans if he has a number of establishments, or even a number of different components in a single workplace. But as far as the numerical goal-setting section, they do have to set goals based on a geographical area, so even if they do have a single plan that covers three geographical areas, their plan will contain three separate numerical goal components to cover the different geographical areas.

Mr Stockwell: The question I have is, how are you going to measure whether a company is or is not related? Does it have to be that if they make oatmeal, the only way they can apply is if they make oatmeal in the other plant? There are companies out there that have a broad cross-section of companies, corporations, wholly owned, partially owned. Who makes the designation of whether or not you're a part of that company and whether your quotas fit or don't fit?

Ms Beall: The question of the number of plans an employer may have is a different issue from whether or not more than one employer constitutes one employer for the purpose of this legislation.

What you do first is you determine who is the employer: either one employer or more than one employer who is found to be, for the purposes of this legislation, one employer.

Having made that determination, you now know your employer and the workforce of that employer. You then go to the second step: Will there be one plan for that employer and workforce or will there be more than one plan for that employer and workforce? But they are two distinct things. More than one employer deemed to be one employer for the purposes of the legislation is distinct from the number of plans an employer has.

Mr Stockwell: So in the very initial stages, you'll define how many employees this employer has, where they are etc. When you get back to the end of the day, there are companies that are huge, mammoth companies that own all kinds of businesses; not just one singular business but all kinds of businesses throughout the province of Ontario. I suppose they could argue with some merit that, "We are ultimately the employer." Now, we have 56 companies operating under this umbrella that we wholly own. Does it get right back to them and they say, "Okay, now we're going to have one plan for 56 different companies"?

Ms Beall: As I said, the first thing you determine is who is the employer, and then you determine how many plans, but you have to do them as two separate steps.

Mr Stockwell: Then it's up to you to determine who the employer is? The government is going to say who the employer is.

Ms Beall: No, the employer determines who the employer is. However, if the employer or employees of the employer or a bargaining agent representing employees of the employer think that the employer should in fact be joined in together with a second employer or a third one because of their related nature, then an application can be made to the Employment Equity Tribunal for that declaration of relatedness.

Mr Stockwell: That's going to be really simple.

Mr Curling: Just as a matter of clarification here, I notice that in the first part of this amendment you say, "An employer may prepare more than one plan, in accordance with the regulations." Could I ask, are those regulations completed? I suppose I must take on blind faith this "in according with the regulations." That's one.

The other part is, are they the same regulations when they had it for the one plan or the regulations for all those plans?

Ms Beall: No, the regulations have not been completed.

Mr Curling: So I must go on blind faith.

Ms Beall: They are in the process of being worked up, yes.

Mr Stockwell: So it's not just faith.

Interjection.

Mr Curling: More than faith. It's not really fine. What we had hoped is that the regulation, consultation and final part of it would have been completed, as we were promised by the minister.

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Maybe the minister could answer this for me. At the end of October we heard that the regulations would have been completed. What I'm hearing now is the regulations are not completed?

Hon Elaine Ziemba (Minister of Citizenship and Minister Responsible for Human Rights, Disability Issues, Seniors' Issues and Race Relations): The regulations are in the process of being completed, Mr Curling, as stated very clearly many times in the past several weeks. First of all, we have to finish our amendments before all the final regulations are done, because it depends on whether the amendments are passed or not whether the regulations will fit that. But we do have the framework for the regulations, which is more than in most cases bills have. We definitely have at least a working framework and we have most of the regulations done.

Mr Curling: That's a very interesting direction, Madam Minister, because you're saying that when this legislation is completed, then we'll look at whether the regulation can fit the legislation.

Hon Ms Ziemba: That's not what I said, Mr Curling. First of all, we gave you a set of regulations on June 25. That is the basis of what the regulations, the final product, will be. We went out and consulted. We consulted with 50 firms and went through the regulation process with them to see if the regulations worked, in essence. But we are now moving through amendments and it would be rather presumptuous of me to say at this particular time that all the regulations are set in stone until this bill is in its final written form. I think that obviously, if you remember in the times when you brought legislation forth, you had to wait until the final passage of the bill to complete the regulations in their finality.

Mr Curling: But I understand that you were going to do things differently, actually, because you had published draft regulations. As a matter of fact, you even did better than that.

Maybe I should ask, then: When you had employed Juanita Westmoreland, who's a brilliant legal mind and assisted in drafting those regulations, was that helpful at all when you had a commissioner in place who had that legal mind and assisted in drafting the regulations?

Hon Ms Ziemba: It was very helpful to have a commissioner the last two years to not only help us with the drafting of the legislation and the regulation but also to consult and to be available to the various people who are interested in this particular bill.

Mr Curling: Could I then ask that, just doing this clause-by-clause, because the regulations are not yet completed and because we have such a very qualified individual on staff as Juanita Westmoreland, she could be here in order for us to maybe bounce some things off her, since she has been so close to the regulations and drafting that? It would be helpful for us, since I'm going on this faith, that the draft regulations and the legislation are not yet completed, with amendments coming in each day, if that individual --

Hon Ms Ziemba: All our amendments are before you, Mr Curling. Your amendments are coming in day by day.

Mr Curling: But the final regulations are not before us, though. Could I get the assurance from you that I could have the commissioner here for questions we just want to clarify?

Hon Ms Ziemba: I think right now, Mr Curling, you have a minister and you have a deputy minister before you and you have very able and capable committee members, two of my parliamentary assistants, the parliamentary assistant to the Premier, the parliamentary assistant to the Minister of Education and Training and the parliamentary assistant to the Minister of Consumer and Commercial Relations. I think you have a very able group of people who can answer your questions, plus a fine staff who have been working on the legal drafting of the regulations, including two very fine members sitting at the table before you.

Mr Curling: In other words, no, the commissioner would not come forward for us to ask her any questions I have.

Hon Ms Ziemba: I think I answered the question.

Mr Curling: Not really, but --

Mr Stockwell: Maybe you should just say no. It would be a lot easier.

Mr Curling: That's what I thought.

Mr Chairman, you're trying to hurry me along. I just tried to make sure if we could --

The Chair: Not to speed up the process necessarily, but given that the question has been asked several times and the answers have been given, maybe we could move on.

Mr Curling: But never answered.

The Chair: If it's not an answer then it's not an answer, and you made the point.

Mr Curling: That's all I wanted to know. If in future that commissioner could be here, it would be so helpful, because I know of her brilliant mind and the input I gather she has put into this. But somehow we have put her in hiding and we can't seem to have her out here. We have the parliamentary assistant now, who would be considered a legal mind too, who would answer all those questions for us. That's all I have to say.

The Chair: Are we ready for the vote on this? All in favour of Mr Fletcher's motion? Opposed? It carries.

Moving on to subsection 11(1.1), a Liberal motion, there is a wording difference on that motion. Mr Murphy, do you want to speak to that difference or have we dealt with your motion?

Mr Murphy: That's fine.

The Chair: So Mr Murphy is withdrawing that motion?

Mr Murphy: I didn't move it.

The Chair: Very well.

Moving on, subsection 11(2), a government motion. Mr Fletcher.

Mr Fletcher: I would like to withdraw 11(2), which was tabled, and replace it.

I move that subsection 11(2) of the bill be struck out and the following substituted:

"Plan certificate

"(2) After preparing a plan, the employer shall prepare a certificate respecting the plan in accordance with the regulations.

"Additional requirements

"(2.1) The certificate of every employer other than an employer in the broader public sector that has fewer than 50 employees and a private sector employer that has fewer than 100 employees shall, in accordance with the regulations, include information with respect to the provisions of the plan for the elimination of barriers and for the implementation of positive measures, supportive measures and measures to accommodate members of the designated groups.

"Filing of certificate

"(2.2) The employer shall file the certificate with the Employment Equity Commission in a form approved by the commission and in accordance with the regulations."

This amendment replaces the current subsection 11(2) and makes a few significant changes.

First, the amendment specifies that the contents of the certificate will be specified in the regulations. This will allow the government to standardize the employment equity reporting and ensure that all employers are providing consistent information against which to monitor and evaluate their performance.

Second, the amendment differentiates between large and smaller employers by providing the regulatory authority to require large employers to include more information on their certificates with respect to their goals for the elimination of barriers, positive measures and measures to accommodate the designated groups. This amendment recognizes the human resources and the financial differences between large and small employers by simplifying the requirements for smaller employers.

Thirdly, it ensures that the certificates will provide information about changes they plan to make in their employment practices to advance employment equity.

Mr Curling: Maybe I could ask the minister this. Is this saying, in layman's language, that the employer will file the plan or the certificate of the plan?

Hon Ms Ziemba: It says filing the certificate. If you'll read, "the certificate of every employer." The certificate.

Mr Curling: I read it, and I really got what you said too. I was wondering if I read it right, because sometimes with these legal terms, I get lost.

Hon Ms Ziemba: Really?

Mr Curling: Yes, I really do. I really get lost in the mirage of words.

Hon Ms Ziemba: We can give you, as we've offered you several times, a briefing so that this will help you. The offer is open. Certainly, any time at your convenience, we'll supply you with people who will brief you. We'd be very willing to do that.

Interjection: Juanita Westmoreland?

Mr Curling: Thanks very much.

Hon Ms Ziemba: You're very welcome. Anything to help you through this difficult process.

Interjection: Except Juanita Westmoreland.

Mr Curling: Thank you very much.

Mr Stockwell: This is great, eh, the cordiality.

Mr Curling: If Juanita Westmoreland would come, I think I would learn a tremendous amount in understanding of this bill, since she has been so close to that. I'll take up that offer.

Hon Ms Ziemba: Good.

Mr Curling: I hear that you will have Juanita Westmoreland coming to the next hearing.

Hon Ms Ziemba: No.

Mr Curling: Madam Minister, we will not have the plan being filed, then; it's just a certificate. Why would you not have the plan filed more than have a certificate filed?

Hon Ms Ziemba: There are many reasons, Mr Curling. First of all, the plan is a very large process. It would require many different pages and many different segments to that if a plan is to cover all the aspects that we would wish it to. It could be a very large, large item. The plan instead will be filed at a convenient place, at the employer's place, and a certificate will be filed with the commissioner which has information that is pertinent to the commissioner, to inspect and to look at and to make sure that she has the requirements she needs at her disposal.

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Mr Curling: Are you saying then that because of the cost to the employer and the detail of this plan, it would not be necessary for it to file the plan but a certificate? Correct me if I'm wrong: The employer would have gone through and done this plan. All they would have to do now is to file the plan. I can't understand why it would be more work. You say it's too much detail to file the plan. They would have gone through this plan and completed it and you're saying all that's required of them to do now is to file a certificate if they have done the plan. Why wouldn't they run it through a copy machine or make some duplicate of it and file the plan? Then you issue the certificate and say: "Okay, you have now done your plan. This is to certify that you have filed your plan."

Hon Ms Ziemba: We're talking right now about 17,000 employers, which means -- and I'm sure Mr Stockwell would agree -- that it would be a very costly expenditure for the government at this particular time and day to have 17,000 plans and the amount of people who would have to review those plans and who would have to make sure and then to file a certificate back to the employer. It would be very onerous for the commissioner to do that work and also to find the space to file all those plans.

Mr Curling: So I'm understanding then that there are many plans that would have been prepared and there would be many people in the civil service to oversee them. I thought that every plan that would be submitted would have been looked into to see that the employer is following to suit and to make sure that the plan is consistent to the things that the government would like or the employment equity policy direction is going.

You're saying, then, that all the plans that are filed would not be scrutinized carefully because you don't have the kind of policing to do that. It's only some that will be done because it's too much money to enforce it. It's no use our bringing legislation in when we don't have the enforcement or the monitoring of it to see that it's efficient.

Hon Ms Ziemba: But we do have the enforcement mechanism. First of all, the certificates will be filed with the commissioner. There'll be information on those certificates. Subsequent certificates will be filed where outcomes, whether that plan has been implemented, will be reviewed and looked at.

The commissioner as well has the opportunity to audit, at her discretion, whom she audits and when to audit. That will give her the mechanism to see if the plans are working.

I must say that I remember very clearly, and watched with avid --

Mr Stockwell: Interest.

Hon Ms Ziemba: Yes, that's a good word. Thank you, Mr Stockwell. That was very good, very helpful -- with very avid interest the pay equity legislation that your government introduced. To my recollection, there was no filing of plans, and we have been working quite well under that.

Mr Murphy: No filing of plans in yours, either.

Hon Ms Ziemba: I'm not disagreeing, Mr Murphy.

Mr Curling: You're saying that because the Liberals, when they were in government, had a pay equity bill that had an inadequacy of not filing, you would also follow the inadequacy of not having a plan being filed. I don't see the sense in that.

That's the problem. I think government after government makes mistakes. We're saying: "We are different. We will do it differently and we will correct all those mistakes done by a previous government." I presume the Liberals did not file any pay equity plan so therefore you're not filing any plan with the employment equity.

One of my concerns that I have here is, could you tell me what will be on that certificate? I don't have the regulations.

Hon Ms Ziemba: You don't need the regulations, Mr Curling.

Mr Curling: This is only draft.

Hon Ms Ziemba: No, this is not draft; this is the bill. This is an amendment to the legislation. We're not discussing the regulations in committee. What we discuss is the legislation. If you want to read this over again, very clearly it tells you what will be included in the certificate.

Mr Curling: You say that what's in the certificate is completely adequate if you want to know if one is following the policy. You don't have to read the plan.

Hon Ms Ziemba: I said that the commissioner will decide what plan she wants to audit and when that's necessary.

Mr Stockwell: You announced this program. I'd like to look at it from a different angle, and I appreciate the minister's comments with respect to cost. I think that's a rather interesting review of the situation. I always like to review costs. Now, you reviewed the cost to the government being excessive, because to manage -- was it 28,000 plans? Gosh, that is a lot of work.

What would it cost, say, an employer out there of an average-sized business, $400 or $500? We know it's going to cost the government so much we're not going to ask it to file its plans. Any ideas or thoughts on what it's going to cost an employer to assemble all this kind of information?

Mr Fletcher: Monetarily, not really. But I think in the end result, the workforce is going to be one that is reflective of general society.

Mr Stockwell: I understand all the social improvements.

Mr Fletcher: No, the number of employers have been --

Mr Stockwell: Through you, Mr Chair, I understand the social improvements. I was looking for money, cash.

Mr Fletcher: Yes. Monetarily, I'm not sure, but I think, as I said --

Mr Stockwell: Next question.

Mr Fletcher: -- the end result could mean that the person's workplace is much more productive than what it was.

Mr Stockwell: Oh, yes. Look, I understand that's why you are introducing it. Sure. I understand that's why he's introducing it.

But really, I wanted to get closer to the money issue, because the minister brought it up and I think it's a good point. You couldn't be asking the government to file all these plans because there are 28,000, for heaven's sake, and there is a money aspect to this bill.

Even your provincial sales tax -- if you're in business in this province and if you file your provincial sales tax, the assembling and work, the government even gives you some money for that. They offset your taxes if you do a PST application -- the answer's no? I thought they gave you a $50 break for a month if you filed your PST.

Hon Ms Ziemba: No. We shouldn't be discussing the PST, but according to how many sales you're filing and saying you have done in that month, you get remuneration. You get a little bit of break on how much --

Mr Stockwell: You see, that's the point. Yes, you get a little bit of a break, and I wonder if any thought's been given, considering the fact that we thought about how much it's going to cost government, to giving the employer a kind of tax break, considering the cost that's going to be involved in assembling these plans that you don't want.

Mr Fletcher: For one, we can't give a monetary figure of how much it's going to cost, but the outlay that an employer does put out at the beginning could be offset at the end, the end result of the employment equity plan and the hiring of people.

Mr Stockwell: Oh, I see.

Mr Fletcher: It could be a give and take, and the total cost you won't know until after the plan is in and working.

Mr Stockwell: So really, you're saving them money by passing this piece of legislation, because you're allowing them to save money by implementing it.

Mr Fletcher: No one said that.

Mr Stockwell: Oh, I thought that's what you said.

Mr Fletcher: I said there could be an offsetting at the end of the --

Mr Stockwell: At the end of the implementation. Because of the benefits they're going to receive, they'll save money.

Mr Fletcher: That's a possibility.

Mr Stockwell: In the long run, there's the benefit for the employer from the financial --

Mr Fletcher: I think in the long run, it's a benefit for the economy in general, and for --

Mr Stockwell: The company, in fact?

Mr Fletcher: It's hard to say what the federal government will do in the future that could have a implication on what happens to the company. But in the long run, hiring people from the designated groups -- we believe they've been missing great opportunities as far as their workplace and the productivity they've been missing are concerned, plus that portion of the workforce that has been neglected.

Mr Stockwell: Okay. Well, Mr Chair, that's really interesting. I can now go out to the private sector and say, "The government's now allowing you to save money by implementing their bill." That's a good sales plug.

Mr Fletcher: I didn't say it was going to save them money. I said there could be some offsetting.

Mr Stockwell: Well, I'll tell them that. There's an upside you people aren't selling very well.

Mr Fletcher: You sell that one for us.

The Chair: I think we're ready for the vote on this. All in favour of subsection 11(2)? Opposed? That is carried.

Subsection 11(2) again. Mr Murphy, you are moving 39, at the top?

Mr Murphy: There is a different 11(2) now. I guess it doesn't really apply, does it? I'm going to be consulted with.

The Chair: Okay?

Mr Murphy: After my consultation, I understand I'm not moving this. Thank you.

The Chair: Subsection 11(4), Mr Fletcher.

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Mr Fletcher: I move that section 11 of the bill be amended by adding the following subsection:

"Filing of copy of plan

"(4) Despite subsection (3), after preparing a plan, the crown in right of Ontario shall file a copy of the plan with the commission."

This amendment requires the OPS, the Ontario public service, to file its employment equity plans with the Employment Equity Commission. It also recognizes that the public service, as a publicly funded institution, should be subjected to a higher standard of scrutiny with respect to its obligations under this act. This amendment is in addition to the right of the Employment Equity Commission to require other employers to file their plans as the commission considers appropriate.

The Chair: Any discussion on this motion?

Mr Murphy: To the parliamentary assistant: This covers then just the Ontario public service?

Mr Fletcher: Yes.

Mr Murphy: Do you have any idea yet how many plans the crown in right of Ontario is going to prepare?

Mr Fletcher: No.

Mr Murphy: How many employees are there in the public service now?

Mr Fletcher: I have no idea.

Mr Murphy: Does the minister know?

Hon Ms Ziemba: Approximately 86,000.

Mr Stockwell: How much money do you plan on saving?

Mr Murphy: Sorry, I just want to follow up now. I'm just trying to read it quickly here. The implementation date for the public service is expected to be 12 months after the effective date. Is that still scheduled to be January 1994?

Mr Fletcher: Right.

Mr Murphy: So that would be January 1995?

Hon Ms Ziemba: Whenever the bill is proclaimed, 12 months later.

Mr Murphy: Whenever it's proclaimed? I thought it was going to be proclaimed so it could be effective January 1994. Has that been changed or do I have my understanding wrong?

Hon Ms Ziemba: We have to get the bill passed, don't we, Mr Murphy?

Mr Murphy: I understand that, but I thought there was a target of a proclamation date.

Interjection.

Mr Stockwell: I can't hear that.

Mr Murphy: Sorry, I can't hear that, Minister.

Hon Ms Ziemba: We would like to have this bill passed as soon as possible so we could proclaim as soon as possible, but we will see, won't we?

Mr Murphy: That's fine. I understand.

Hon Ms Ziemba: Twelve months after proclamation, that's when it will be.

Mr Murphy: Let's take the hypothetical, that it does get passed by the end of this legislative session; is it still the intention to proclaim it by January 1994?

Hon Ms Ziemba: We'll just have to see how quickly we can get everything done, Mr Murphy.

Mr Murphy: The answer is no, then?

Hon Ms Ziemba: We will wait to see when the bill is passed, how quickly.

Mr Murphy: The broader public service, that includes basically the other 900,000? There are about 900,000 employees in the broader public service, something in that range?

Hon Ms Ziemba: Approximately.

Mr Murphy: The effective date for them was 18 months after the proclamation date. Okay, thank you.

The Chair: Further discussion? All right, we'll move on to the vote then. All in favour of 11(4)?

Mr Gary Malkowski (York East): Just on a point of clarification: This applies only to the OPS, correct? I wanted to know about some of the others, the BPS.

Interjection: Only the OPS.

Mr Malkowski: All right.

The Chair: All in favour of Mr Fletcher's motion? Opposed? That carries.

Mr Murphy: I only saw four votes there, Mr Chair.

The Chair: Moving on, section 11.

Mr Murphy: Are you going to ignore it?

The Chair: I saw the hands go up. Can we do that again?

All in favour of Mr Fletcher's motion?

Mr Murphy: Okay, thank you.

The Chair: Moving on to sections 11.1, 11.2, 11.3, 11.4, 11.5, the PC motion that's been postponed. Mr Harnick, are you prepared to speak to that one?

Mr Charles Harnick (Willowdale): No. I'd prefer if you held it down till our critic is able to be here.

The Chair: All in favour of that?

Mr Harnick: Thank you.

The Chair: That's fine. It's already been postponed.

Moving on, section 11.1. It's a government motion. Mr Fletcher.

Mr Fletcher: I move that the bill be amended by adding the following section:

"Standard re contents of plan

"11.1 Every employer shall ensure that the matters referred to in subsection 11.1 that are contained in an employment equity plan would, if implemented, constitute reasonable progress towards achieving compliance with the principles of employment equity that are set out in section 2."

Mr Harnick: Excuse me. As Mr Fletcher read that, he said, "Every employer shall ensure that the matters referred to in subsection 11.1" --

Mr Fletcher: Oh, in 11(1). Sorry.

Mr Harnick: Yes, okay. So I'm reading the right thing.

Mr Fletcher: Yes 11(1), not 11.1. Sorry.

This amendment establishes standards for the development of an employment equity plan. The principles of employment equity enumerated in section 2 of the bill will become the principles upon which an employment equity plan must be developed.

Second, this section, coupled with the provisions of section 24 of the bill, clarifies that the Employment Equity Commission can evaluate the quality of an employer's qualitative or numerical goals as part of a review or an audit of an employer's employment equity plan to ensure that they establish a plan sufficient for reasonable progress towards achieving employment equity.

When combined with section 12, this amendment also ensures that minimum standards will be established for both the development and implementation of an employment equity plan. Employers must show that their plans, if implemented, would show reasonable progress towards achieving the principles of employment equity and must make all reasonable efforts to implement their plans.

By moving these standards into the legislation, this amendment also addresses concerns raised by many of the stakeholders, particularly the designated groups, that substantive issues such as standards for compliance be dealt with in the legislation itself and not in the regulations.

Mr Stockwell: A couple of quick questions. What do you mean by "if implemented" in here?

Ms Beall: That's a drafting style to ensure that what you do is look at what is in your plan. How can you tell what goes towards reasonable progress towards achieving compliance? The "if implemented" says you look at what's in your plan; presuming that it's fully implemented, is it reasonable progress? You don't get progress until you implement. That's why the word "implement" is in there.

Mr Stockwell: I see. Your worry here as far as compliance is concerned is if someone gives you a plan and they don't implement it.

Ms Beall: No. I'm just trying to explain that it's necessary there for clarity as to what the test is. You look to see what's in the plan and say, "Well, if it's implemented, is it reasonable progress?" That's how you determine the quality of your plan.

Mr Stockwell: Why would they give you a plan that doesn't have reasonable progress?

Mr Bromm: If I can help, the "if implemented" is there because the evaluation of a plan by the commission may take place. For example, you know that every employment equity plan under the act and the regulations has a three-year cycle; it takes three years.

Mr Stockwell: I understand that.

Mr Bromm: So it may be that the commission would evaluate a plan within the first year and therefore it would not have been fully implemented because it's a three-year plan. Therefore the commission --

Mr Stockwell: No, I know that. But it says "if implemented."

Mr Bromm: Yes, so the commission says, in the first year when it reviews it, "Okay, if the employer does all of these things, will they, if they were completed successfully, constitute reasonable progress towards the implementation of employment equity?"

Mr Stockwell: Right, and if they don't, it doesn't constitute reasonable progress.

Mr Bromm: Right, so the commission can then make orders to have the plan amended.

Mr Stockwell: So when you get a plan, they have to implement it. If they don't, then there's not reasonable progress. So why do you have "if implemented"? You've got to assume they have to implement it, or there's no progress.

Mr Bromm: Yes, but you're talking about two different matters. First, you're talking about the requirements to implement, but also the requirement to implement a good plan, and the commission does not want an employer to just have to implement a plan that does not satisfy the requirements of the act. Therefore, there is a standard put in.

Mr Stockwell: Then why would you approve the plan?

Mr Bromm: They wouldn't, and this ensures that they won't.

Mr Stockwell: Clear as mud to me.

Mr Harnick: There's no question; the way this section is worded, it seems to me to be redundant. I don't understand this section at all. It says that you have to ensure that the matters referred to in 11(1), which are the criteria for the plan, must be contained in the equity plan. We know that. Those factors, if implemented, constitute reasonable progress. Well, I don't understand the words "if implemented" at all. Is there some idea that the plan will not be implemented?

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Mr Murphy: And if so, is it reasonable progress if it's not?

Mr Harnick: If all of these things are in the plan, is there some idea that you have that these plans will be filed but not implemented?

Mr Fletcher: No, they should be implemented.

Mr Harnick: Yes, the mere filing of the plan --

Mr Fletcher: If they're not implemented, that's the other part that Scott was talking about before.

Mr Harnick: Well, tell me this --

Interjections.

The Chair: A bit of order, please.

Mr Harnick: If you have this plan, this master plan that's going to solve all the problems of the workplace, and it doesn't, two or three years down the road, prove to solve all the problems of the workplace, does the mere fact that you've implemented it mean that it's reasonable progress and that the government can't come along and say the plan's failed? Because I can now say, "No, no, I've implemented the plan that you approved and therefore there's been reasonable progress."

Mr Fletcher: You would have to show reasonable progress.

Mr Harnick: I don't have to; all I have to do is implement the plan.

Mr Fletcher: That's not what it says.

Mr Harnick: Where does it say "show reasonable progress"? It says all I have to do is have a plan, and if the plan contains 11(1)(a) through (f), all I have to do is implement it and that equals, automatically, reasonable progress.

Ms Beall: Perhaps again I can assist. That isn't what that section says. What it says -- and perhaps I can repeat what I had said earlier and perhaps in a way that could be a little clearer -- is that you look at the matters that you have in your plan and then you say that's the list of what you're going to do. We then ask for the test of the quality of your plan, to ensure that your plan is good enough for the purposes of the legislation. By "good enough for the purposes of the legislation," it means it must meet the standard of constituting "reasonable progress toward achieving compliance with the principles of employment equity." You look at the things which are listed in your plan and you say, "If all of the things that are listed in the plan are carried out, would that be reasonable progress towards compliance with the principles of employment equity?"

You can't measure progress of things just sitting there in the air. You have to measure progress of things if they are carried out, because it's a movement towards, an achievement towards, the principles of employment equity. This is a drafting style; this is a grammatical issue. I don't know any way to explain it more clearly than to explain that from a grammatical point of view, in order to constitute reasonable progress towards, you have to have some kind of concept of movement or some concept of -- and it's clearly pointed out there -- implementation in order, when you look at your plan, to be able to determine that it meets the quality required of this legislation.

Mr Harnick: That's very nice, but that's not what it says. That's not what the section says. What the section says is that if you have the matters that are referred to in subsection 11(1) in your plan, then if they're implemented and I as the employer say, "This plan is now effective, so it's now implemented," that constitutes reasonable progress. All I have to do, as an employer, is come up with a plan that has the criteria set out in 11(1)(a) through (f). Then what I have to do is say to Big Brother who's going to be watching all of this: "I have now implemented 11(1). Therefore, because it's implemented and it complies with 11(1), that constitutes reasonable progress."

You're shaking your head at me, and I appreciate you may not agree with me, but that's what it says. It doesn't say what you just told me it says. Maybe the minister can help us out. It doesn't say that.

Mr Fletcher: The answer has been given, and obviously he disagrees with the answer. If need be, vote against this amendment, if you don't agree with it.

Mr Harnick: You know, I may want to vote for the amendment. If somebody explains it to me --

Mr Fletcher: It's been explained to you; you just don't accept the explanation. That's fine. We understand that and --

Mr Harnick: Mr Fletcher, if you tell me in broad daylight that it's dark out, I'm not going to accept it.

Mr Fletcher: I hope not.

Mr Harnick: You might accept it, but I'm not going to accept it. The fact of the matter is, that is not what the section says.

I want to make sure, from the point of view of all people who are depending on this legislation, that it's going to work. The fact is that if I was an employer, all I have to do is give you a plan that says (a) through (f), and if you say it's got all the characteristics that I need from 11(1)(a) to (f), all I have to do is say, "This plan is now operational," and that equals reasonable progress. That's what the section says. Maybe the minister can help us out.

Mr Fletcher: I've just given you an answer. You just don't agree with it.

Mr Harnick: It's one thing to give me an answer; it's another thing to give me a correct or satisfactory answer.

Mr Fletcher: A correct answer in your opinion. This amendment was worked out with the human rights lawyers.

Mr Harnick: Well, why don't you get them in here to explain it, because it seems to me to be rather redundant.

The Chair: Mr Harnick, the deputy would like to answer that question.

Ms Naomi Alboim: What 11(1) does is deal with a qualitative assessment of what is contained in 11(1). So 11(1) lists all the various components of a plan, including a variety of measures like positive measures, like supportive measures, like numerical goals. What this says is that just having a positive measure or a numerical goal does not satisfy the requirement of the act. What is required is an assessment that those measures in that particular workplace, if implemented, will in fact constitute reasonable progress towards the achievement of the principles.

It's not just the fact that they have numerical goals; it's the fact that they have numerical goals that make sense for that particular workplace in that particular community to constitute reasonable progress towards the principles of employment equity. It's the assessment of the quality of the measures, not just the mere existence of those measures.

We've worked not only within the ministry, obviously, but as you know, all legislation is drafted by legislative counsel, who were given the policy intent, and they draft to come up with the words that convey that policy intent in legal language. We have that approval from legislative counsel for this section.

Mr Harnick: Maybe one of the subsequent sections qualifies it. I haven't read the subsequent sections so I could be wrong, but if that's what you're telling me that section says, it clearly does not say anything about an assessment of the quotas. You call them numerical goals; I call them quotas. It's a quota system. Let's call a spade a spade. It's a quota system. Numerical goals are quotas.

Ms Zanana L. Akande (St Andrew-St Patrick): Let's not call a shovel a spade.

Mr Harnick: The fact is that you have got a plan. The plan says you have to have such-and-such a quota within your plan, and that quota is approved by the commission.

All this section says is, the moment this is implemented, then that is deemed to constitute reasonable progress. There's nothing in there that deals with an assessment of the plan. The mere implementation is deemed to be reasonable progress. That's what the section says. If you want it to say something different, then I suggest you'd better put in something to do with assessments, because the word "assessment" does not appear there. What it says is "if implemented." The mere implementation, the mere fact that the employer says, "There's my approved plan; I am now implementing the plan and I'm dealing with the quotas that the plan sets out," alone constitutes reasonable progress. There's nothing in here about an assessment that I can see. That may be what you're intending, but I'd like you to show me the sections that deal with this actual assessment that's going to be made, because it's not here.

The Chair: Mr Harnick, I think they've all answered the question, perhaps not to your satisfaction, but they've answered the question.

Ms Akande: I think that question has been answered. There doesn't seem to be a need for me to speak, because it was really in an attempt to further answer the question that I was wanting to speak, but if you have conceded that you know the answer to the question, then I won't bother.

Mr Harnick: No. I didn't say that.

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The Chair: He didn't say that. I just said the question has been answered, perhaps not to his satisfaction.

Ms Akande: Let me attempt an explanation. There are plans and then there are good plans. Some plans will draw up a lot of measures which, if implemented, may not lead to the achievement of employment equity. They may not even be in support of employment equity, but they are plans.

What this is saying is that the employer should ensure that the plan he or she draws up in his or her business, with the help of all the consultation with all those people, if implemented, leads to the achievement of satisfactory progress towards employment equity. That's what it says. If we remove the qualifications and we go back to the principal clauses -- boy, once a teacher, always a teacher --

Mr Harnick: I should be taking notes here.

Ms Akande: Yes, write that down. I think we have to say that the employer shall ensure that the matters constitute "reasonable process." Emphasis is on the insurance supplied by the employer around his or her own plan.

Mr Harnick: I think that's what you want it to say, but it doesn't say that.

The Chair: Thank you, Mr Harnick. I have other people on the list.

Ms Jenny Carter (Peterborough): I just want to say I think we're dealing with what I call wilful incomprehension here. I can't believe that anybody who functions as a lawyer could be really as dense as he's suggesting at this point.

I just thought I'd make an analogy. If you plant a seed, what you've got is just a little seed, and you water it and you tend it and it grows into whatever. So we're just saying we'll plant a seed that's going to turn into the rose of employment equity and not a thistle. All right?

Mr Harnick: I apologize for being dense, but I have listened to four explanations that tell me what this says. But I wish one of you would read the section, because it doesn't say that. Some day, as dense as I may appear to be, I may have the opportunity to go to court and I may have the opportunity to say to the judge, "Your Honour" --

Mr Fletcher: "I was on this committee."

Mr Harnick: That's right. "I was on this committee, and they didn't know what this section meant either." But quite frankly, this section does not say what you want it to say. It just doesn't say that. It doesn't say anything about an assessment of the plan. It says that once there is a plan and it contains the elements of subsection 11(1), the mere implementation of that plan constitutes -- that's the word they use -- reasonable progress. All you have to do is have a plan, have the plan approved and implement that plan, and that equals progress.

Interjection: That's what it says.

Mr Harnick: I think quite frankly that it's indicative of the difficulty that this whole bill is going to have. If you really want it to say what you're telling me, this doesn't say it. It doesn't accord with what the parliamentary assistant told us this section is supposed to do. As much as Mrs Carter believes that all we have to do here is plant a little seed and it's going to germinate, it's not going to germinate, because no new words are going to pop into the section when the judge reads it. So be my guest: Do what you want with this section.

Mr David Winninger (London South): What I'm hearing Mr Harnick saying, what I believe he's saying, is that section 11 should say what section 12 already says. If you read the two together, I think you get to the point where you want to be, Mr Harnick.

Mr Harnick: I indicated that earlier.

Mr Murphy: That's what you're saying he says, but that's not what he's saying.

Interjection: There's another lawyer here, eh?

Mr Harnick: Now I'm really confused.

Mr Winninger: Section 11 deals with what's in the plan and what's reasonable to be in the plan, and section 12 deals with reasonable progress towards achieving the goals set out in the plan. I think if you take the two together, you've met the test you're asking it to meet.

Mr Harnick: I agree in a sense, but everybody has mentioned the word "assessment." Who's going to make this assessment? I don't see an assessment in 11.1 or in 12.

Ms Akande: "Shall ensure."

Mr Harnick: "Every employer shall ensure that the matters referred to" are contained in the plan.

Interjection: No.

Mr Harnick: That's what it says.

Interjections.

Ms Akande: "The matters referred to...constitute reasonable progress."

Mr Harnick: If implemented, and they're in the plan, that constitutes, that alone --

Ms Akande: They "shall ensure" that it constitutes.

The Chair: Okay, I think we've dealt with it, even though we haven't dealt with it in the minds of some.

Mr Stockwell: Oh, no, we've dealt with it in our minds.

The Chair: We've dealt with it? Very well, we'll move on then. All in favour of this section?

Mr Murphy: Whoa. We haven't even had a chance to speak yet.

The Chair: I didn't see your hand go up.

Mr Murphy: I'm sorry; my fault if you didn't.

I have a question on a different topic. We moved a motion to move an entire section of the regulations into the bill, which is part of our section 12. This seems to be at least in part a response to that, and what is our 12(7), which comes out of the regulations, appears to be the source of this 11.1. The draft regulations released by the minister set up two criteria related to numerical goals, although this covers more than the numerical goals; it covers measures as well. But that seems to be the core of it, which both has this "reasonable progress" wording and talks about being reasonably achievable by working in good faith etc.

I'm wondering if there is a rationale for dropping the second part of the test and why this at least appears to be narrower than the wording in your own regulations. That's open to anyone who cares to answer it.

Mr Bromm: I think I understand that question. The intent of this section is in fact very close to the intention that you had in your motion under section 12. This just takes away a lot of the detail, which was considered best left to the regulations because a lot of it was detail around the development of measures and the development of numerical goals, and took out the concept of actually ensuring that when those measures are developed, they are developed in accordance with a specific standard.

When this particular section was developed, it was considered very important to have a link back to the principles of employment equity that are set out in section 2, because up to that point that link had not really been made in the legislation. So this simply ensures that when employers are developing their plans, their measures, they are aware of the principles that are supposed to guide the implementation of employment equity and ensure that their measures are developed with those principles in mind.

The matters that are referred to in your motion are more details of how to do something. What is supposed to be contained in those measures will remain in the regulations themselves.

Mr Murphy: The second part of the question was that the provision in the regulation which our motion moves to the act contains the "reasonably achievable" and "working in good faith" wording, which is not in this 11.1. It was conjunctive: There was an "and" in there, so that both halves of the test have to be met in the regulation. This drops that part of it, and I'm wondering what you believe the impact of dropping that part of it will have.

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Mr Bromm: I guess I can't really comment on what I think the impact of dropping the good -- it's really dropping the "good faith" component, because we still maintain the "reasonable progress" in 11 and also the "all reasonable efforts" in 12. So the reasonableness remains as a standard. My understanding is that the "good faith" component would be an implied assessment that any commission would undertake in assessing anyone's attempts to implement a legislative requirement.

Mr Murphy: Well, there is a difference. "Progress" seems to identify the goal you want to get to; I suppose "achievable" does too. I'm sort of trying to figure out what both of them meant and why the absence of one in the act -- it's not in the regulations -- and why it was in the regulation in the first place. I'm just trying to get your help in explaining this to me.

Mr Bromm: My understanding, and someone may correct me if I'm wrong, is that there was no intention to narrow the test any more than the test that was set out in the regulations. It was simply redrafted in this manner to make it a bit more brief and a bit more concise. I don't think there was any intention to say that the test should be made more narrow than it already was.

I think the essence of the test was the reasonableness, and that mirrors the language that's in section 12 itself. So it was simply redrafted to reflect 12 and to maintain the same test. The point is that it was not meant to narrow the test at all.

Mr Murphy: Okay. Is it section 24 that gives the commission the powers to analyse plans? Is that the one?

Mr Bromm: Yes.

Mr Murphy: So this sets the standard for the plan, which says that all of the things in 11 have to be measures that are going to constitute "reasonable progress." That sets up a statutory standard, and then we're going to get the commission to review what "reasonable progress" means.

Is it the intention to have some clear guidelines as to what the government means for the commission by "reasonable progress"?

Mr Bromm: I'm not sure about the exact guidelines the commission will be preparing on what "reasonable progress" may be. It may be an area where it will be very difficult to develop an overall guideline because what would constitute "reasonable progress" will be a very contextual and case-by-case incident, depending upon the composition of your workforce when you start and what resources a particular employer has at their command and what changes they anticipate to take place over the life of their planning cycle. So I don't think it's a matter that can be put down into eight guiding principles, other than to say to look at where you are when you're starting and where you should be based on what your external workforce is. But at this point I can't comment on what guidelines there may be on the point.

The Chair: Very well. I think we're ready for the vote on this section.

All in favour of Mr Fletcher's motion? Opposed? Carried.

Interjection.

The Chair: I would remind you, Mr Stockwell, you don't have a vote on the committee.

Mr Stockwell: You got me.

The Chair: Moving on to section 12 -- this has been carried already. We'll move on.

Mr Curling, section 12.

Mr Curling: We have read this into the record already.

The Chair: I don't remember. Did he read this into the record already?

Clerk of the Committee (Ms Donna Bryce): Yes.

The Chair: It was moved into the record; that's right. It was postponed, so you can just speak to it, Mr Curling.

Mr Curling: In this section, we try to make it clear that some of the things that were left to regulations would be explicit in legislation. So it's right up front in there. We can understand where it's coming from. It's more explicit and much plainer.

I think it's self-explained. I know that some of the members here would rather state that this should be placed in the regulation. That is why we have moved this amendment forward and put it in the legislation.

The Chair: I thought Mr Curling would go on.

Mr Curling: No, no. We just thought this was self-explanatory. We'll leave it to the lawyers to take care of it.

The Chair: Very well. Further discussion? Mr Fletcher, are you speaking to this?

Mr Fletcher: Just on the point that the regulations are still under consultation, still being developed, at this time and we feel it's a little premature to have this in the legislation.

The Chair: Further debate?

Mr Fletcher: Mr Chair, could I call for five minutes, please?

The Chair: Okay, a five-minute recess.

The committee recessed from 1656 to 1704.

The Chair: I call the meeting to order. Is there any further debate on this motion?

Interjections.

The Chair: Can I have some order, please, in the back?

Mr Curling: What I understand from the parliamentary assistant is that one of the reasons he seems to be indicating that he will not be supporting this is because the regulations are not drafted yet and that this legislation amendment that the Liberals have put forward is a little more advanced than what he has. In other words, it is before the regulations that you have drafted, so therefore you are not able to support it because you're not ready with your regulations. Am I understanding you right?

Mr Fletcher: The regulations are still in the consultation process, and as the minister explained earlier, sometimes the regulations may have to be changed in order to fit the legislation after the amendments have gone through. We feel that this is right out of the regulations.

Mr Curling: You're saying the regulations are not drafted.

Mr Fletcher: We have draft regulations. They're not finalized.

Mr Curling: They're not finalized. What you have are draft regulations. This is not regulation; this is legislation. You're saying that what you see here seems to really reflect regulations. I don't know if the rest of your colleagues will be supporting this, but you will not support this because it looks too much like regulations.

Mr Fletcher: No, that's not what I said.

Mr Curling: Oh.

Interjection.

Mr Curling: So he's saying, "Yes, I said that," and you're saying, "No" --

Mr Winninger: No, I'm not saying anything.

Mr Murphy: Ah, you'll go far, David.

Mr Curling: I just want to understand that, because if we are on the right track here -- we are on the right track that this amendment we have here is the type of regulation that you'd have, but your regulation is in draft status now; it's not ready. But you would not support this because you'd rather see this lovely legislation in regulation.

Mr Fletcher: No. There are some concerns about the section you're dealing with and those concerns still have to be addressed in the consultation process on the regulations, and it would be kind of senseless to have it in the legislation right now.

Mr Curling: So you have concern about the Liberal --

Mr Fletcher: Some of the stakeholder groups have concerns.

Mr Curling: Let me just see if I get you right here, Mr Fletcher. You have concerns about the Liberal amendment to the legislation. You're not listening to me. Mr Chairman, let me ask you then, has the member got any concern about our legislation here? Has he got concern about the legislation? If he has concern about our amended legislation, could he just tell us what are those concerns.

Mr Fletcher: I did. I explained the concerns we have --

Mr Curling: What are they?

Mr Fletcher: -- and the minister has already explained some of the concerns we have about the regulations, that we have to go through the consultation.

Interjection: Is this regulation or legislation?

Mr Fletcher: It's right out of the regs.

Mr Curling: Mr Chairman, I heard the minister tell me that her regulations are drafted, and he told me they're not finalized. This is legislation; this is not regulation. He said he has some concerns about the legislation. As a matter of fact, he said that they look so well that they should be in his regulation and I said, no, these are legislation. If he has no concerns about them, say that, but it seems to me that you'd rather have what we have written here in the regulation. Is that what he's saying?

Mr Fletcher: No.

The Chair: Mr Fletcher, again --

Mr Fletcher: It's on the record, Mr Chair, it's on the record.

The Chair: I've got Mr Stockwell on the list.

Mr Stockwell: At the risk of firing up the member for Peterborough again and allowing that dense quote to go out again, I just want to --

Interjection.

Mr Stockwell: It seems to me that you can make this argument on all amendments. In essence you're saying until the regulations are completed, you can't address this amendment. Is that fair? No?

Mr Fletcher: No. This amendment is right out of what the regulations are saying. The regulations right now are still under consultation. On this part of the regs also -- consultation -- there are some concerns about it. So rather than move it into the legislation, why not wait until the consultation is finished until we can find out exactly what the concerns are?

Mr Stockwell: Right. In essence you're consulting on the regulations at this time.

Mr Fletcher: Yes.

Mr Stockwell: As we speak.

Mr Fletcher: Well, I'm not.

Mr Stockwell: No, but your government is.

Interjection: Why are we doing this then?

Mr Stockwell: Then it comes down to a quick question. The quick question is, why are we going clause-by-clause on legislation if you're consulting on the regulations and thereby not allowing certain amendments to come forward?

Mr Fletcher: The minister already explained that.

Mr Stockwell: Right.

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Mr Murphy: Ah, there's more magic in the air than I thought.

Mr Curling: Try again, Chris. I tried.

The Chair: I've got Mr Murphy on the list, Mr Stockwell.

Mr Murphy: We're getting into fairy dust.

Mr Stockwell: I think we should see what Mr Murphy can grow on this one.

Mr Curling: Throw on some water.

Mr Murphy: What I heard was that you had concerns about the regulations that were being identified in your consultation process. What I did not hear and have not heard is what concerns were identified as related to our amendment to section 12.

Mr Bromm: I can't give you exact details about all the concerns that were addressed.

Mr Murphy: Just some.

Mr Bromm: One of the concerns that has been brought forward on the goal-setting model, for example, is the way in which the goal-setting process is linked to geographical areas. For some employers there may be difficulties in setting goals on a geographical basis if they do not do their business planning on a geographical basis, for example. There is concern that the goal-setting process may not be flexible enough to allow for business planning that takes place at this point in time. That's one of the areas.

The other areas are also related to clarification as to what is meant by things such as "internal availability" and "external availability," where that data will be coming from and what types of statistical data those data will be based upon.

Mr Murphy: Thank you. That's an answer.

Mr Stockwell: That's a good answer.

Mr Curling: Yes, a little political answer on policy.

The Chair: I think we're ready for the vote, then, on this question.

All in favour of Mr Curling's motion? Opposed? That motion is defeated.

We move on to the entire section now. Shall section 12 carry as amended? A show of hands, please. That carries.

New section 12.1: Mr Murphy.

Mr Murphy: This would add a section 12.1:

"Measures set out in a plan that are designated to eliminate barriers identified under section 10 or accommodate persons who are members of the designated groups shall" -- and I should note that there's a difference from the writing here; instead of the wording "not derogate from...," it should be "be in accordance with the Human Rights Code."

Interjection: Would you repeat that, please?

Mr Murphy: "Measures set out in a plan that are designated to eliminate barriers identified under section 10 or accommodate persons who are members of the designated groups shall be in accordance with the Human Rights Code."

Mr Fletcher: "Shall be in accordance with."

Mr Murphy: Yes.

Interjection: That makes all the difference.

Mr Murphy: So it takes out all that "derogate" and "infringe" and "right or privilege" language.

The Chair: Are you speaking to that, Mr Murphy?

Mr Murphy: Yes, I will speak to that. The intention of this provision is to ensure that the barriers and accommodation in a plan basically comply with the Human Rights Code. In other words, what is done to achieve employment equity will be not less than that which the Ontario Human Rights Code requires of employers in any event. That's the purpose.

This is done, and I'll be frank, at the instigation and encouragement of the Alliance for Employment Equity, ARCH and other groups which have concerns on this issue that employment equity be achieved at least in the minimum basis of compliance with the Human Rights Code. It may not be perfect wording, and I'd be glad to hear changes or amendments that achieve that purpose in a better way than this wording, but that's the intent.

The Chair: Discussion?

Mr Malkowski: I would like to ask the lawyers, just before comments here: I have similar concerns that I share with DPEE, as well as with the alliance, ARCH and the Women's Coalition for Employment Equity, as well as just myself having some concerns about some of these things.

Could you clarify this for me? From my understanding, employers are required under the plan to remove all barriers, and they have to comply with the Ontario Human Rights Code. Is that confirmed in this? It's not under the employment equity bill; it will be under the Human Rights Code. Is that correct?

Ms Beall: The provisions of the Human Rights Code state that the Human Rights Code supersedes all legislation unless that legislation specifically derogates from the provisions of the Human Rights Code. There is nothing in this legislation which specifically derogates from the provisions of the Human Rights Code. Therefore, the protection afforded by the Human Rights Code to all the persons protected by the Human Rights Code continues under the employment equity legislation and would continue even without this proposed amendment.

Mr Malkowski: May I ask a supplementary? Are you saying that an employer, under employment equity, under this legislation, must afford the accommodation and follow the Human Rights Code, and not per se the legislation? Correct?

Ms Beall: Just to explain, this legislation deals with the proactive measures the employers must take with respect to their plan and with respect to the elimination of barriers to the employment of the four designated groups. That is in addition to the requirements of the employer under the Human Rights Code to accommodate persons as required by the Human Rights Code.

Mr Malkowski: May I ask a final question? Let's say the commissioner has a working committee on employment equity for the commissioner's report on the working group on the employment of persons with severe disabilities. If they make recommendations in there that, let's say, identify the elimination of barriers and that those systemic barriers come down -- they are now under the Human Rights Code -- could we not enhance the legislation to include that?

I'm curious to know: Since the legislation goes under the Human Rights Code, the Human Rights Code is then the minimum requirement, correct? There won't be a maximum under the employment equity plan.

Ms Beall: I'm not quite sure I understand Mr Malkowski's question.

Mr Malkowski: Okay. This will be my last comment. The way it is right now, under equity legislation, when you're talking about a specific -- let's say an employer has their plan. They must follow the Ontario Human Rights Code. Correct?

Ms Beall: In addition to carrying out and developing their plan, the employer continues to have the employer's obligations under the Human Rights Code.

Mr Malkowski: Thank you.

Mr Murphy: I can partly respond to it and clarify it, and I agree with you about the wording in the Ontario Human Rights Code. My concern in part relates to the consequential amendments at the end of the bill which effect an amendment to the Human Rights Code to provide in certain purposes -- there's a first draft here and you have an amendment to it, but in essence a plan can be satisfactory under the Human Rights Code for certain purposes. My concern in this is to ensure that the accommodation level that the plan contains complies with the Human Rights Code in any event of these consequential amendments.

Ms Alboim: You're referring to the proposed amendments under section 51?

Mr Murphy: I believe that's right, yes.

Ms Alboim: The proposed section under 51 would require the Human Rights Commission and a board of inquiry, when ordering a remedy, so that is not in a proactive mode but in a reactive mode -- if there is a complaint that goes through the commission and goes to BOI, it would require the BOI and the commission, when they make their order in that remedy, to take into account the impact on the implementation of the employment equity plan when determining undue hardship.

Is that what you're referring to?

Mr Murphy: Yes. There are three consequential amendments relating to plans: a new 14.1, 24.1 and 41.1.

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Ms Alboim: Kathleen and Scott, you may have to intervene here.

I would like to know the policy intent of your amendment, if you can expand on that a little bit, in terms of the relationship between the code and the Employment Equity Act as you are proposing here, in terms of the standard in particular. I'd like you to address that and then perhaps we can respond to what your policy intent may be.

Mr Murphy: We heard during the public hearings from a number of groups, including the ones I was talking to in proposing this, about potential conflict between the standard imposed by the Employment Equity Act and that imposed by the Human Rights Code, particularly around "undue hardship," but not exclusively. The real question was whether the "reasonable progress" wording and other of those kinds of wordings dilute that standard for the "undue hardship" test in the Human Rights Code.

The purpose is to make it clear that for those circumstances where "undue hardship" applies in the Human Rights Code, employment equity won't dilute it in individual circumstances. In other words, you may have individual complaints that come forward under the Human Rights Code where someone says, "An accommodation of me in these circumstances isn't an undue hardship for the employer," although it may not be envisaged in a plan that this accommodation be made, for whatever reason: They've chosen other measures and the plan is reasonable, reasonable progress, but it doesn't envisage this particular accommodation. The question is, what's the defence? The employer has to defend.

I may be wrong, but my interpretation is that the employer can come in and say: "Look, I have a plan. The plan is reasonable. It meets all the criteria of the Employment Equity Act. That is sufficient for me, in the circumstances of the complainant coming forward, to not do that accommodation. I therefore do not have to meet the `undue hardship' standard for this individual complainant." It's meant to address that, among other things, but that's one of the situations.

Ms Alboim: I'm glad you clarified the policy intent because that really helps in terms of the response. Kathleen will respond to it in full and I will add if necessary.

Ms Beall: Mr Murphy, your understanding of what would happen between the relationship of an employer's plan and an individual request for accommodation, given the old wording of section 51 -- this would be an explanation of what could have happened under the old wording of section 51. But with the amendment to section 51 proposed by the government, it takes away from the employer the opportunity to say, "I have provided for some sort of accommodation in my plan, and that is sufficient."

As you'll remember, under the wording of section 51 as it was at first reading, it said that if a complaint went to the Human Rights Commission, the commission was to see if it was addressed in the plan, and it was sent to the Employment Equity Commission or tribunal. If it had been addressed in the plan and the plan was a recent plan and the plan complied with the legislation and was being implemented, then the employer could rely upon that protection.

The proposed government amendments to section 51 remove that. Instead, if a person asks for individual accommodation and is denied it, that person can continue to go to the Human Rights Commission and have the full remedies available by the Human Rights Commission with respect to that complaint, which means that since persons continue to have the full protection of the Human Rights Commission, they would continue to have the protection of the Human Rights Act, notwithstanding what is in the employment equity plan with respect to accommodation.

Mr Murphy: Although not entirely. I agree with you that the access to the Human Rights Code is still there. The question is, what criteria are then used to assess the individual accommodation? The new consequential amendments say that the cost of implementing the employment equity plan is to be part of the assessment of undue hardship in the individual complaint circumstance. Correct?

Ms Beall: Yes, and what it says is, "or a plan which has not yet been officially approved by the Employment Equity Commission or tribunal."

The employer's costs in implementing the plan may be considered by the Human Rights Commission. That is no different from how it exists now. As you know, when the Human Rights Commission looks at undue hardship, the employer may bring forward what financial information the employer wishes to, and the commission may look at it in whatever process it does. It doesn't say "except for a plan which has been approved." It doesn't say it must, it just says it may.

Mr Murphy: No, that's not the point. I understand, but that's not what I'm getting at. Here's the issue. I'm an employer, I come before the Human Rights Commission and I say: "A thousand bucks for this accommodation is undue hardship. Five hundred I can do. I can justify $500."

This consequential amendment, I think, has the possibility of an employer saying, "Well, $500 is what I could do, but if I assess the cost of implementing the employment equity plan that I have, which does not envisage this individual accommodation, $300 of it is used up -- of the $500 I would have had -- by the cost of implementing employment equity. Therefore, I only have $200 left and that's the maximum I could spend before it becomes undue hardship under the code." That is $200, which could, for the purposes of that job, be insufficient to provide the accommodation.

That's what I think this consequential amendment has the effect of doing, which is to take away. It does take away to a certain extent, because part of the assessment of the individual accommodation is the cost of the accommodation, including the cost of implementing the employment equity plan, which may have nothing to do with the cost of the accommodation in the individual circumstance.

Ms Alboim: I'll attempt to address that, and again Kathleen and Scott can jump in.

This gets back to the difference between the Employment Equity Act and the Human Rights Code, and the Employment Equity Act as a proactive, systemic approach to redress systemic discrimination in employment. What we are asking employers, bargaining agents and others in the workplace to do in a proactive way is to plan to put into place in a proactive way a whole battery of measures and initiatives that will eliminate barriers and will deal with that systemic discrimination.

The standard in the Employment Equity Act, as we have just done in the previous two sections, is that they have to show that the measures constitute, when implemented, reasonable progress towards the principles of employment equity and that the way they implement their plan has to be on the basis of all reasonable efforts. Those are the standards for the Employment Equity Act.

The Ontario Human Rights Code is not, generally speaking, systemic in nature. Generally it deals with individual complaints, although there is a component that deals with systemic issues. Generally it is based on individual complaints, and generally the remedies are awarded in reaction to a finding of discrimination confronted by an individual.

Because the remedies tend to be in terms of response to those complaints, the standard there is undue hardship. Undue hardship is a higher standard than all reasonable efforts. The question becomes, is it appropriate for there to be an undue hardship standard for the Employment Equity Act, which is a proactive, systemic approach, rather than a reactive response to individual complaints?

The determination was made that for employment equity purposes, the appropriate standard is all reasonable efforts. However, individuals -- and that's the substance of the new amendment -- who are discriminated against should still have full access to the Human Rights Commission, should still have full access to that whole process and a determination as to whether there was discrimination or not. There should be an individual remedy possible for that individual that would require an employer to do more than, for that individual purpose, what was planned across the board, and that standard should be undue hardship in terms of responding to that individual concern.

But in determining undue hardship, if the plan has been approved, the commission or the BOI should take into account what the impact would be on the implementation of the plan. Given that the reasonable efforts standard, let's say, is here -- I can't hold this and use my other hand -- and the undue hardship standard is, let's say, here, it gives that leeway still for the BOI to order something above the plan to respond to an individual complaint that would allow for the undue hardship standard to be met.

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So again, the new amendment deals with the interaction, interrelationship between the two standards, the two pieces of legislation, so as not to diminish individual rights on the one hand but to facilitate and encourage a systemic approach that does not bring an employer to the point of undue hardship but rather expects all reasonable efforts of an employer to achieve reasonable progress.

Mr Murphy: There are two responses to that. One of them is the general implementation of the standard. By and large, I think it relates primarily to the disabled community but maybe not exclusively. The issue of what standards you impose is separate from who pays for it, first of all.

We did hear from a number of people in the public hearings that certainly in some circumstances a tax incentive system or some other kind of approach to the higher accommodation costs probably would be a much better way to do it. This does not speak, although a later amendment does, to the issue of who pays for it; it speaks to the issue of standard.

I agree with you about the individual versus systemic. Absolutely, employment equity is about systemic and the Human Rights Code is by and large about individuals. It's an individual-based complaints system, and although there are systemic elements to the Human Rights Code, it's really up to an individual to do it and to bring a fact situation before a board of inquiry to have it determined.

I guess the question then is, if I'm an employer and I say all right, my positive measures are going to be a plan over the next seven years to make my workplace wheelchair-accessible, have lower desk heights available and have a Braille computer, whatever the series of plans are, and someone comes in who has a different set of disabilities than that plan calls for, then what happens?

This I think would then say it is possible for the employer to say, "Well, yes, we may not be able to accommodate you," and then in the absence of employment equity, not accommodating you would be in breach of the Human Rights Code. But in the presence of employment equity, not accommodating you is not in breach because of this provision which says, "I as an employer can use the cost of those other accommodation measures in a systemic way as part of my defence to the individual who comes before me to request a specific accommodation."

I agree and I think you've identified the debate is about the standard to be applied. I think the conclusion that the government has reached permits the result that I just outlined.

Ms Alboim: Again, in section 51, we do allow for the board of inquiry to make an order that would require additional measures or initiatives to be put into place. The expectation is that most individual complaints could in fact be accommodated or remedied by an order that would not take away from the plan and that could add additional requirements on the employer short of undue hardship because of the difference between reasonable efforts and undue hardship. If I could give you a classic example just to -- I don't know whether there's time or if it's necessary to go into what you know.

Mr Murphy: There's a separate debate about the multiplicity of proceedings that are going to be created under this between the Human Rights Commission process and the Employment Equity Commission process, but we can deal with that one later. I think the positions are set out.

Mr Malkowski: Just one last follow-up on a point. You talked about the board of inquiry and you then talked about the employment equity legislation and dealing with systemic barriers. I understand that and the systemic discrimination.

But suppose you have a situation where a person comes to a place under employment equity and the employer's plans then say, "Well, we have a guarantee to provide," let's say an interpreter, for example. Let's say it says that under the employment equity plan. But then the person comes forward and applies and gets turned down for a couple of years because they didn't provide an interpreter, let's say.

It's a similar standard. That's systemic discrimination that can happen. Is that under section 51 then, requiring an investigation of what happened there or does that get referred back to the Human Rights Code? How would that be dealt with? Or can they be dealt with under both the tribunal and the Human Rights Commission?

Ms Alboim: If individual designated group members feel discriminated against or feel aggrieved by particular positive measures or particular measures in the plan and feel that their needs have not been met as a result of the existence of the plan or the existence of the measure, they still can go forward to the Human Rights Commission to make that complaint.

In your individual case that you describe, the employment equity plan would require a policy, for example, to be in place to allow for the accommodation of people with disabilities, would require that people know what that policy is and people know how to access the accommodation they need and that accommodation is provided on an ongoing basis to individuals who need it.

If the individuals apply for work and are not provided with that accommodation, they certainly still have access to the Human Rights Commission to take that forward. That's expressly what the amendment to section 51 does allow for.

Before, without this amendment, one could have argued that an individual would not have had the opportunity to go through the Human Rights Commission. Our amendment now allows them to go forward to make that complaint to the Human Rights Commission.

Mr Malkowski: Just a very last point: Can a board of inquiry deal with that if it comes to systemic discrimination or an interpreter issue? Will it apply across the board?

Ms Alboim: Yes.

Mr Bromm: I also just wanted to make a clarifying point. In Mr Malkowski's example, he said that the plan itself provided for the provision of an interpreter. If the plan had, as an actual step, that the employer must undertake the provision of an interpreter and the employer fails to provide that interpreter, then the employee or the applicant is also able to go to the Employment Equity Tribunal to challenge that employer for failing to take a specific step required in the plan.

So in the instance that Mr Malkowski set out, the employee or applicant would have access to both the Employment Equity Tribunal and the Human Rights Commission. It will be up to those two, the tribunal and the commission, to work out probably administratively a memorandum of understanding as to how situations will be handled when an applicant may be able to go before either one of those bodies. But in that specific example, access could be to both.

Mr Curling: That leads directly to the same point that we are making here, as explained, that the Human Rights Commission is there for individual discrimination and employment equity is there for systemic discrimination, if one follows the process, and that's what my colleague is trying to do here, following the processes through because they've identified a systemic discrimination.

Remember now, thinking about time, they've gone through all that process after maybe a considerable length of time, and I'm hearing that they have opportunities to go through both. Furthermore, the cost to that individual -- who thought it could be dealt with efficiently through employment equity, and he's saying then they have an opportunity to go to the Human Rights Commission.

So you see the fact is that you have to or you should try to then define properly what the employment equity will do and what the Human Rights Commission will do. I think in this situation we're dealing with systemic discrimination, the barriers, defining the barriers and eliminating those barriers. The Human Rights Commission, although maybe able to do that, is really dealing with individual discrimination. I'm not quite clear of the path in which they could go. You just said they could go both paths.

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The Chair: Does anybody want to comment?

Mr Curling: No? If you don't comment on that --

Mr Bromm: I can, if you like. There are instances in which either path could be appropriate or could be used, and that is, for example, the instance Mr Malkowski brought up, when there was a specific step required in the plan that was not taken and the failure to take it was also a discriminatory act, such as the refusal to supply an interpreter. In that instance, it could be appropriate that either venue handle it.

Mr Curling: But that's the point I'm making. I almost fell off the chair when no one had a comment about that. If you'd gone through the Human Rights Commission and they said, "Listen, this is systemic discrimination; it should really better be handled through employment equity," does that individual then join the line for employment equity? I'm talking about time now, because I thought employment equity was set up to deal with the systemic discrimination, with defining barriers and eliminating those. Having gone through there and having said, "I really can't handle this because, you see, this is individual discrimination," the process you have put in place is -- do I have it wrong? Then tell me, because I would hate to know that some individual is fighting this discrimination and then finds himself on the wrong path.

Ms Alboim: If I could reply to that, it's the intent and the whole purpose of the Employment Equity Act to deal on a systemic basis so that we can deal with these issues in a much more proactive, systemic way, so that ultimately there will be fewer employment-based complaints going forward to the Human Rights Commission. That's the intent of the bill.

We understand that's not going to happen overnight and we understand that while employment equity is being implemented in this province there will still be incidents of individual discrimination that have to be addressed. The most recent amendment to section 51 allows for individual complaints of discrimination to go forward to the Human Rights Commission to be investigated and redressed. At the same time, it requires employers to deal in a proactive way with issues across the board.

It is the intention that over time, when these employment equity plans have been implemented in a thoughtful way by employers, the issues will no longer require individuals to go forward to the Human Rights Commission. That's the whole basis for this act, but we recognize that individuals will continue to be discriminated against, unfortunately, until employment equity is implemented absolutely successfully, and that may take some time.

There are, as Scott has indicated, instances where it will be far more effective to go through the Employment Equity Tribunal because something is dealt with in an employment equity plan and the question is that it has not been implemented, even though it was in the plan, or that the quality of the plan in the first place was not what it should have been. Going by that route, the employment equity route, will result in orders by the Employment Equity Tribunal that will redress those issues across the board. It will, in our opinion, be the less frequent case where people have both avenues to go to.

Mr Murphy: I disagree with the deputy on her last point. I think you're going to have lots of circumstances where both avenues are available. It just seems to me that every employer is going to argue that the plan applies in every circumstance. It either applies to the specific individual, as in Mr Malkowski's example, or to the group of which that person is a member, so you're going to have both routes available.

If I were advising an employee, I would tell them every time, "Try and make sure this gets dealt with under the Employment Equity Act, not the Ontario Human Rights Code," and here's why: Scott referred in his answer indirectly to section 26, which says that there's your complaint section. If you're an individual who feels aggrieved because there is some kind of plan that is meant to accommodate you to provide you with an opportunity, as part of a designated group, of access into the workplace, the employer has a two-fold defence: The first is, "My employment equity plan conforms to the act," and I think we're operating under the assumption that it would, and the second is that the employer says, "Not only have I done that but I've made all reasonable efforts to implement."

In the interpreter's circumstance, the employer can then argue, "Look, I made every effort, but the economy hit a big bump and I can't afford that at this point in time," or, "I've been laying off people," or whatever the range of circumstances which in that circumstance could arguably be a reasonable effort.

The question, then, is the dispute over the standard that applies, because "reasonable efforts" in that context is a lower standard than "undue hardship" under the Human Rights Code, which is why I would advise the employer every time to do the employment equity, to fight the Ontario Human Rights Code application as long as I could, to try to get the decision on the Employment Equity Act first, because the "reasonable efforts" standard related to that complaint is a lower standard for the employer than the Ontario Human Rights Code, which is "undue hardship."

Ms Alboim: It's not the employer who determines whether it goes to the Employment Equity Tribunal or the Human Rights Commission; it's the complainant.

Mr Murphy: I'm talking practically. You have both options, and you're going to try to fight back and forth. The employer could make the application, in theory, under 26: "They've been saying I haven't complied, so they filed a complaint. I want to dump it into the Employment Equity Tribunal." That's where it should appropriately be dealt with. We have five- and six- and seven-year delays in practical reality in the Human Rights Commission. By the time it ever gets dealt with, the person could be long since off somewhere else.

The question is, what standard is going to apply? I have a real problem with forum shopping. I just don't think that serves the purpose of justice at all well. You're going to create lots of money for lawyers and lots of money for the people who are going to be lawyer-type advocates in the system, and redirect the money from what it should be used for, which is to assist people through accommodative efforts, to lawyers and consultation committees and advocacy committees and all of the things, the paraphernalia of adversarial justice instead of real measures. I'm concerned about a different standard resulting from that.

Mr Bromm: I can probably address your concern about the different standard, because although there may be instances where an employee or an applicant chooses to avail themselves of the procedures under the Employment Equity Act, the regulations specify at this point that, for example, with persons with disabilities -- and I can refer you specifically to subsection 20(1), where it says that the employer shall ensure that the measures set out in the plan that are designed to accommodate persons with disabilities are developed and implemented in accordance with the Human Rights Code. That incorporates the "undue hardship" standard into the regulations and therefore into the bill itself.

Even if an employer goes to the commission, they will not be able to avail themselves of the lower "all reasonable efforts" standard. If that standard is applied, the way it would be legally applied would be that you cannot possibly be found to have made all reasonable efforts if you have not complied with the Human Rights Code, because it specifically says in the regulations that you must. So the same standard on individual accommodation will apply in both instances.

Mr Murphy: So why won't that go into the act?

Ms Alboim: If I can just respond to Mr Murphy on that as well, what your amendment does is talk about barrier elimination and accommodation measures. Barrier elimination measures could be interpreted to mean, the way it is written here, basically all qualitative measures, all positive measures, all supportive measures, and it is for all designated groups, not just people with disabilities.

What we think it could mean, just having seen this new wording, is that you are importing the standard of "undue hardship" in a proactive way for all designated groups for all measures. That means bringing all employers to the circumstance where for a proactive systemic review the standard is "undue hardship" rather than "all reasonable efforts" and "reasonable progress." That, I think, would be quite onerous for employers. It means that their entire planning cycle, all their measures, has to meet the standard of "undue hardship."

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Mr Malkowski: So the policy that Mr Bromm was talking about and some of the lawyers here were explaining -- maybe perhaps you can help us. Where we mention in section 51 where it deals with the permission of an applicant to apply to the Human Rights Code, it won't stop them, that's true. But does it also make sure that they use the Employment Equity Act or the tribunal if an employer doesn't follow its own employment equity plans to provide the accommodation and how to deal with that through the Employment Equity Tribunal? I would wish to see that. If that situation could be resolved, the concerns of some of the groups here today, the Disabled People for Employment Equity -- I am satisfied with many of the explanations today, but just for the record, I want you to know there are still concerns in the community.

Another thing is that I want to make sure the Employment Equity Commission will then monitor and talk about real following of that section 51 to make sure those obstacles and those barriers come down systemically, that the Employment Equity Tribunal has real teeth and real power to be able to do that so that if an employer fails, there is a remedy.

The Chair: I think we're ready for the vote. All in favour of Mr Murphy's motion? Opposed? That is defeated.

Mr Fletcher: I withdraw the previous subsection 13(1) and substitute it with subsection 13(1):

I move that subsection 13(1) of the bill be amended by striking out "the employer's employment equity plan" in the second and third lines of subsection (1) and substituting "each of the employer's employment equity plans".

This is a technical amendment.

The Chair: Discussion? All in favour? Opposed? That carries.

Section 13(1), (2), a Liberal motion.

Mr Murphy: Forty-four -- it's a bit out of order, right?

The Chair: Actually, it's 43a.

Mr Murphy: I have a government motion 43. Government motion 43 is the same as our motion 44.

The Chair: Very well.

Mr Murphy: Are the government lawyers satisfied that it achieves the same purpose?

Ms Beall: The motion deals with taking single plan singular into plural.

Mr Murphy: Yes, just a consequential amendment. You're satisfied that the government's amendment serves the purpose you were trying to achieve?

Ms Beall: Yes, the government motion does deal with taking plan singular into plans plural.

Mr Murphy: As long as you're satisfied that you're doing what we wanted to do, then I'm happy. Okay, fine. We won't move it.

Mr Fletcher: I move that section 13(2) of the bill be struck out and the following substituted:

"Plan certificate

"(2) After revising a plan, the employer shall prepare a certificate respecting the revised plan in accordance with the regulations.

"Additional requirements

"(2.1) The certificate of every employer other than an employer in the broader public sector that has fewer than 50 employees and a private sector employer that has fewer than 100 employees shall, in accordance with the regulations, include,

"(a) information with respect to the efforts made to implement the previous plan and the results achieved; and

"(b) information with respect to the provisions of the revised plan for the elimination of barriers and for the implementation of positive measures, supportive measures and measures to accommodate members of the designated groups.

"Filing of certificate

"(2.2) The employer shall file the certificate with the Employment Equity Commission in a form approved by the commission and in accordance with the regulations."

This amendment sets out requirements for certificates that must be filed after the review and revision of the employment equity plan that matches the previous amendment in 11(2).

The amendment specifies that the contents of the certificate must be as specified in the regulations and this will allow the government to standardize employment equity reporting and ensure that all employers are providing consistent information against which to monitor and evaluate the performance.

The amendment also differentiates between large and small employers by providing the regulatory authority to require larger employers to include more information on their certificates with respect to the efforts they have made to implement their employment equity plan, and the measures they plan to implement in the next planning cycle.

It also recognizes the human resources and financial differences between large and small employers by ensuring that smaller employers are subject to simplified reporting requirements.

Again, it ensures that certificates will provide sufficient information against which employers can be monitored and evaluated for their employment equity progress.

Each certificate can be compared to a previous certificate to determine what progress an employer has made in the implementation of employment equity.

The amendment also addresses some concerns that were raised by designated group representatives and employment equity advocates that employers be required to submit sufficient information against which their performances can be evaluated.

Mr Curling: There's a comment I want to make. I presume you are admitting that really the certificate alone is not adequate.

Mr Fletcher: I can't hear you, Mr Curling.

Mr Curling: You can't hear me?

The certificate alone that the employer should file is not sufficient information, as I was indicating to you earlier on, that they should submit the plan. Your minister talks about the cost in order for employers to submit the plan or the plans. You're saying now, I understand, that this certificate is requiring more information on it. Is that why this amendment is there?

Mr Fletcher: Is that why this amendment is there? For information?

Mr Curling: To give more information on the certificate.

Mr Fletcher: It gives information on it, yes, for more information on the certificate, also to differentiate between the two, the larger and the smaller employers.

Mr Curling: The larger and the smaller force?

Mr Fletcher: Employers.

Mr Curling: Yes, I know.

Mr Fletcher: Yes, to put more information on it.

Mr Curling: If they have submitted the plan, as you said, though, that it will have given all the information, instead of a certificate.

Mr Fletcher: This is the certificate.

Mr Curling: I know.

Mr Fletcher: The plan could be several hundred pages and this could be three or four pages.

Mr Curling: I don't know. The plan is in the regulation and I don't know the final regulation. You know more than I do because you have the regulation.

Mr Fletcher: It's about time you admitted that.

Mr Curling: You do.

Mr Stockwell: That's a real insult.

Mr Curling: I know that.

Mr Stockwell: This is awful, if any party is calling us dense.

Mr Curling: He said he has more information than us.

The Chair: Are we ready for the vote on this?

Interjections.

The Chair: I don't know whether Mr Curling will ask the question again or whether there's a comment from anyone else.

Mr Curling: A lot of them were answered. I just want to put it on the record.

The Chair: Very well. Ready for the vote then.

Mr Stockwell: I didn't hear the answer.

Interjection.

Mr Stockwell: I heard that part. I mean the answer to his question. He says that you know more than him because of the regulations, but I still wouldn't mind hearing an answer.

Mr Fletcher: It's in the regulations.

Mr Curling: I can't hear you either.

Mr Fletcher: You've seen the regulations I've seen.

The Chair: I think, Mr Fletcher, you've answered. Is that the point? Mr Stockwell, he's answered the question. Okay? No more discussion on this matter then?

On this motion, all in favour? Opposed? Motion carries.

Can I propose that we adjourn at this point. We may not have enough time to deal with the other matter. Is someone moving adjournment? We'll adjourn for today and convene tomorrow at 3:30.

The committee adjourned at 1800.