EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
CANADIAN CIVIL LIBERTIES ASSOCIATION
ONTARIO NATIVE WOMEN'S ASSOCIATION
CANADIAN MENTAL HEALTH ASSOCIATION, ONTARIO DIVISION
ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED
LABOUR COUNCIL OF METROPOLITAN TORONTO AND YORK REGION
CANADIAN ALLIANCE FOR VISIBLE MINORITIES
ONTARIO SEPARATE SCHOOL TRUSTEES' ASSOCIATION
NORTH BAY AND AREA CENTRE FOR THE DISABLED
CONTENTS
Wednesday 1 September 1993
Employment Equity Act, 1993, Bill 79
Canadian Civil Liberties Association
Alan Borovoy, general counsel
ORC Canada Inc
Philip McLarren, senior vice-president
Judith Keene
Ontario Native Women's Association
Susan Parsons, spokesperson
PUSH Ontario
Carol McGregor, executive director
Canadian Mental Health Association, Ontario division
Dr Michael Phillips, chairman, racial and cultural subcomittee
Carol Roup, acting executive director
Advocacy Resource Centre for the Handicapped
David Baker, executive director
Labour Council of Metropolitan Toronto and York Region
Shannon Hall, treasurer
Canadian Alliance for Visible Minorities
Krishan D. Uppal, president
Ontario Separate School Trustees' Association
Mary Hendriks, president
Patrick Meany, first vice-president
Carol Devine, second vice-president
Patrick Slack, executive director
North Bay and Area Centre for the Disabled
George Livingstone, president
Continued overleaf
Continued from overleaf
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
*Acting Chair / Présidente suppléante: Carter, Jenny (Peterborough 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 Duignan
Jackson, Cameron (Burlington South/-Sud PC) for Mr Tilson
Miclash, Frank (Kenora L) for Mr Chiarelli
Perruzza, Anthony (Downsview ND) for Mr Winninger
Also taking part / Autres participants et participantes:
Arnott, Ted (Wellington PC)
Bromm, Scott, policy adviser, Ministry of Citizenship
Clerk pro tem / Greffière par intérim: Bryce, Donna
Staff / Personnel:
Campbell, Elaine, research officer, Legislative Research Service
Kaye, Philip, research officer, Legislative Research Service
The committee met at 1002 in room 151.
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.
CANADIAN CIVIL LIBERTIES ASSOCIATION
The Chair (Mr Rosario Marchese): I welcome Mr Borovoy and Ms Adams. We have a half-hour for your presentation. Members usually have plenty of questions to ask you, so leave as much time as you can for that.
Mr Alan Borovoy: I will leave out all of the niceties about the Canadian Civil Liberties Association, just to start this way: It's a very complex subject and inevitably organizations like ours have to zero in on a few key issues in order to most effectively make the points we have to make. In midsummer, of course, it's very difficult to convene a board meeting, so my instructions from my organization are necessarily limited to a few issues about which we had reached a consensus a number of months ago.
Let me just point out that when I talk about designated groups this morning, I will be referring not to those with disabilities, for whom I think some other considerations might well apply, but we would be talking then about the other three designated groups: women, visible minorities and aboriginal people.
The first part of our brief sets out what we call the justification for employment equity. Not to go into this in any great detail for you orally now, but just to begin with a survey that our organization conducted in the spring of 1991 in Sudbury and Sault Ste Marie, Ontario, we looked at more than 1,200 jobs in retail establishments -- and one has to remember, these are communities with rather large aboriginal populations -- and of more than 1,200 such jobs -- and incidentally, every place we looked at had at least 100 employees -- there were no more than three occupied by aboriginal people. In a majority of the cases, dealing with some 850 jobs, there wasn't a single one. After three decades of the Ontario Human Rights Code, and even longer with its predecessors, the fair employment practices acts, these are disquieting statistics and they're replicated in many ways in many other places. Our brief indicates some of the other statistics. There are many others available that dramatize and demonstrate the extent of the inequities.
One possible reason for it is even with an effective Human Rights Code -- and these days, unfortunately, few people would be accusing the code of effectiveness -- but even were it effective, there's a very basic problem: The onus of proof is on the person alleging discrimination. Among appropriately qualified people, the differences in qualifications are not very often that significant. In the greatest number of cases, there won't be that much to choose. On that basis, it's very difficult for people to demonstrate that they were discriminated against. In order to do so, they effectively have to demonstrate that they're substantially better than the persons who were hired, and that just can't happen often enough in order to prove the case as a practical matter.
We also set out some five or six examples of systemic impediments, situations in which unreasonable employment practices led to discriminatory results even if no discriminatory intent could be established. We did that in order to contribute our part to the debate and to try to answer those people who talk about systemic impediments as though it's all mythology. That's in our brief. I won't go into any great detail there.
All of this has led us to the conclusion that it's no longer good enough for government human rights agencies to sit on their formal jurisdictions waiting for complaints to come along. There have to be proactive initiatives taken in order to create the conditions of equality. To the extent that this bill would have outreach programs, to the extent that it provides for the removal of systemic barriers, there is a growing consensus that this is a good thing. The contentious issue is numerical goals and I want to address that in a little more detail with you now.
Numerical goals have been denounced as instruments of reverse discrimination and as quotas by another name. In our view, regardless of these criticisms, there is a case to be made for numerical goals. The problem is that, again, when people may be well qualified, they often will not be able to prove their case for human rights purposes.
So what the employment equity concept does is reverse the onus. It says the employers, if they don't meet the numerical goals, have to justify, have to prove the case, rather than the person alleging discrimination. In our view, this is not inequitable. The employers are the ones with the information. They know why they made the choices they did; they made the choices. They have the information. It's not inappropriate that they have some onus of explanation and justification. But the problem then becomes, how does one set the appropriate goal? This is where we come into what from our point of view is one of the major difficulties with this bill. If I read the bill correctly -- and nobody can guarantee, in my view, that he does read the bill correctly; it is not easy reading -- I think it would permit what happened at the Ontario College of Art a few years ago. In our view, that should not be permitted.
You will recall that they wanted to increase the number of female instructors, a perfectly appropriate objective -- there were pitifully few, so they wanted to increase them. They did it by saying all jobs vacated by retirement for the next 10 years or so women would have first crack at. This unavoidably discriminates against males. It can't be otherwise.
1010
Now, in our view, if it was believed, as apparently it was, that men and women were equally divided in the available talent pool, why wasn't the numerical goal 50% rather than 100%? The answer we get back from some of them is, "We wanted to try as fast as we can to get up to 50% on our staff, do it as quickly as possible." Even then, they said, "By the end of the century, at this rate, there will only be 37%." Others said that the idea is to compensate for yesterday's discrimination.
In our view, if you find someone who has really suffered discrimination yesterday and you can hire that person to compensate that person, that's legitimate compensation. But how and why should that be transferred to someone else, just because the other person is of the same gender? In our view -- and we shouldn't take our eyes off the ball -- what justified numerical goals is the fact of discrimination, the fact that it's so hard to prove it. That being the case, the numerical goals should be aimed at avoiding discrimination every time the employer goes out to hire, promote or make whatever other employment decisions have to be made. That's the purpose of it, not to compensate for yesterday, not to have a representative institution as fast as possible. That's not a legitimate objective. The legitimate objective is to use it to fight discrimination.
That brings us, then, to our first recommendation that, in order to set the goal, the questions to be asked are -- put it this way -- how many of the designated groups will the employer hire if that employer recruits vigorously among the designated groups, sets reasonable job standards and, in the ultimate selections, does not discriminate? That's the way, in our view, to set numerical goals.
Our second point, and we call this a residual safeguard: There should be another safeguard to guarantee fairness to others while we are trying to accelerate the pace of equity for those who most often suffer discrimination. Notwithstanding the existence of employment equity plans, the employers should retain the legal obligation not to discriminate against any individuals on the prohibited grounds. Any individuals, whether white males, women, visible minorities, aboriginal people, should be granted the right to file complaints when they suspect that they individually have suffered unfair discrimination.
The crux of this is that it's really a shifting of the onus of proof. In today's society, without employment equity, under the Human Rights Code, those alleging discrimination have to prove the case. For the most part, this burden falls on the designated groups: on women, visible minorities and aboriginal people.
Now we say the onus should shift. At least to the point of filling a properly set numerical goal, the employer should have the onus. But in those exceptional situations where the employer chooses someone other than a designated-group member, if the employer can demonstrate that this person was substantially better, because that's really, as we say, what you effectively have to do when you've got the onus of proof, or if the individual is bypassed by the employer and feels improperly discriminated against, you should still have a remedy. But then, like with the disadvantaged groups today, he'll have the onus of proof.
What we're doing then in order to try to maximize fairness is to distribute the onus of proof differently from the way it's done under the Human Rights Code today and even the way it is under the employment equity bill before you. We say if you do it this way, you have a better chance of accelerating the pace of equity for those disadvantaged people without being unfair to others.
I come back then to our two recommendations: one, that numerical goals should be formulated on the basis of how many of the designated groups would be hired if the employer (i) recruited vigorously among them; (ii) set reasonable job standards; (iii) did not discriminate on the prohibited grounds in the ultimate selections; and our second and residual safeguard is that the normal remedies under the Human Rights Code should continue to apply notwithstanding the existence of employment equity plans, all of which is, as always, respectfully submitted.
Mr Alvin Curling (Scarborough North): Again an excellent presentation, thought-provoking, that sends us back to the drawing board to look at things in a different perspective, and I want to thank you for that.
Mr Borovoy: I'm afraid anything you say now may be an anti-climax.
Mr Curling: Not at all; not with you.
Having arrived there, and of course I think the best employment equity bill that could be presented here should be fair to all and be completely inclusive to all people within the province regardless of colour, class, creed, religion, and once you start to exclude, then you have this confrontation situation. You've made the point very, very clearly here.
I also want your comment on a part, when we sit at the table to draft the plan itself -- I'm talking about the employer and the employee -- information must be given to do that. There are employers who really feel that they are conducting a business, and rightfully so, and much of the information that is given is extremely confidential, not from the point of who we hire but as a business strategy and of a competitive nature. They are concerned about confidentiality.
To arrive at where you are saying then, before we get to -- and of course to be extremely fair, how would you deal with the confidentiality part and what should the employer give up, so to speak, and not interfere with his business strategy?
Mr Borovoy: I had hoped I was wise enough to indicate in advance that my instructions were necessarily limited to a couple of points because I appreciate that there are other issues in the bill for which I cannot purport to represent a consensus in the organization. But let me just broach it this way. Hopefully, this will be sufficiently suggestive if not sufficiently conclusive to reply to your question: On the issues of confidentiality, I think you should start from the presumption that employment equity plans be disclosable, that really what you are talking about is hiring people, removing barriers to unfairness and things of that kind so that there is not a presumptive, there is not really an apparent basis in that to believe that anything crucially confidential that would jeopardize the employer's interest vis-à-vis competitors was going to be undermined.
1020
There may be a mechanism such as under the privacy act, for the moment, for trying to promote confidentiality in the event that some of that information, under some exceptional circumstances, might disclose something that is genuinely confidential. But I think that it's probably sensible to begin with considerable scepticism about that claim and require those making the claim of confidentiality to demonstrate it.
Mr Tim Murphy (St George-St David): I also read your previous submission on the consultation. Both I think are excellent, and I want to commend you and the people involved in it on the quality.
One question I have is related to your second issue about the ability to file a complaint regardless of the equity plan. Partly, I would like you, if you could, to provide us some specific direction on how you would see us including that in the bill. If you don't have it now, maybe provide it to us, because we're on a relatively short time frame and we're in clause-by-clause next week, if you could provide some specific direction on that.
Secondly, and I don't know whether you've had an opportunity to consider this either, we've heard some discussion and I think, to be courteous to the government, it's probably an unintentional effect that for example the rights of the disabled may in fact be taken back somewhat by this bill because of the difference between the "undue hardship" test in the Human Rights Code and the "reasonable effort" test in the equity plan. I'm wondering if you've looked at that issue at all.
Mr Borovoy: To answer your second question first, the answer is no. At the outset, I indicated that our comments were limited to the other designated groups. There are a number of rather complex problems we haven't had an opportunity to address there.
In answer to your first question, one possibility is to amend the employment equity bill in the section that says, "An employment equity plan constitutes a special program under the Human Rights Code," to say something to the effect that employers should be able to make special efforts to go after designated people, but the ultimate selections would still be governed by the Human Rights Code, so that if that distinction were incorporated in that section, I think you might be able to accomplish what we're talking about.
Mr Cameron Jackson (Burlington South): Thank you, Alan. It's always enjoyable to receive your wisdom and your well-thought-out briefs for any of our committees, and again you haven't disappointed us today. The challenge, of course, is that we immediately move to clause-by-clause. I wouldn't stylize your presentation as radical. It's only radical because it's too sensible.
I want to focus in on two areas. One is that yesterday Mary Cornish, who was on the Ontario Human Rights Code Review Task Force, made a very strong argument for combining one equality rights tribunal. I wanted to get some feedback from you on that because your association has some very strong views, and you have, in your presentation, referenced the complex interplay between the three commissions that are currently operating or will be about to operate. I'd like your feedback on that, if I might, and I know you're familiar with Mary's recommendation, which was that there be a combined tribunal.
The second one had to do with the impact of your first and second recommendations and how that relates to the threshold with small business. Under your suggestions, I see that all employers could potentially fit in that, because you've changed the focus and the emphasis. Could you comment on those two, briefly?
Mr Borovoy: As far as coverage is concerned, that is, who is susceptible to it, we have not had the opportunity to address that. I suppose if you are talking about the kinds of suggestions we've made, our suggestions are elastic enough to apply more broadly rather than more narrowly so that they could apply beyond that.
Your question of the tribunals: I find this a most perplexing subject and I'm not sure that I'm able at this point to give you what I would consider an answer I'd be happy with. There are so many administrative problems connected to the current administration and enforcement of the Human Rights Code. They're legion. We're all aware of them. In all fairness, I don't think it's fair to blame any one government for this. All three political parties have had a share in it and it has deteriorated over the years. I don't know; as I talk to you today, I would prefer to do a lot more work on that subject before I would like to hold forth on what would constitute a more sensible administration.
Mr Jackson: As I yield to my colleague, could I ask that yesterday's brief from Mary Cornish be given to Mr Borovoy and he'll have an opportunity to look at that. It's worthwhile reading.
Mr Borovoy: If we could, we might respond at a subsequent date. I don't want to be facile and hold forth about it now.
Mr David Tilson (Dufferin-Peel): My question is really along the same lines, and you've already indicated that you are reluctant to comment on it. There are all kinds of discrimination out there. There's discrimination with respect to the age, discrimination with respect to the youth, discrimination with respect to people with language, all kinds of discrimination. All of these groups that are mentioned in the bill are probably the most discriminated against, but discrimination is going to continue.
I guess I get, along with your comments -- some of your comments were almost tongue in cheek with respect to the effectiveness of the Human Rights Commission, as to how long it takes to process this thing. God knows how long it's going to take to process these matters under the Employment Equity Commission.
My question, along the same lines as Mr Jackson's, is, wouldn't it be more effective, if we have these discriminatory acts that are referred to in this bill, along with all kinds of other discrimination, to give more teeth to the Human Rights Commission, the cost alone? The Employment Equity Commission's first budget is going to be $6 million. I guess I'm talking about, if we're going to create something, let's make sure it works. We have already got a system. Why don't we improve the existing system?
Mr Borovoy: You have indicated from the outset what my difficulty would be in responding to it, but let me make a suggestion to you. There are many good administrators around who have been running other government programs and running them well. I would wonder whether it wouldn't make some sense to send some of those people in to try to examine what's going on in the Human Rights Commission. I know it will be said that this has been done before, but I'm not satisfied that people have been sent in there because of administrative competence. What I would like to see is some kind of assessment done on what it would take to improve the existing system. Then I think I could respond more sensibly. I know I'm delaying the answer to you but, frankly, I think all I could do is be facile right now in trying to respond to that. I think it requires a really tough job of sitting down and looking at the thing and coming up with the kinds of recommendations that, from an administrative point of view, are going to be workable.
Mr Gary Malkowski (York East): Your presentation was very helpful and very thought-provoking. You mentioned the aboriginal group, women and visible minorities and you were saying that the disabled group would require a different process. Could you explain why you feel they require a different kind of process?
Mr Borovoy: That's because there may be a number of situations in which what it would take to provide conditions of work that people with various disabilities could effectively adjust to is beyond the kinds of principles we're trying to establish in the other cases. We have to recognize our organization hasn't had the experience to be able to develop the competence to comment adequately on that situation and, again, it's because we have had experience in other areas and not in that area that we are focusing on the other areas.
1030
This is not to suggest for a moment that those with disabilities should not be the beneficiaries of whatever employment equity programs there may be. It is to say that there might be arguments for them continuing to be beneficiaries even as we might restrict the scope of employment equity in some respects in the other cases.
Mr Malkowski: Some groups have suggested that the definition of disability include severe disability and be included in the bill and not in the regulation. Could you make a comment on that?
Mr Borovoy: For the same reasons as indicated earlier, I am reluctant to get into that because it's an area that we don't have sufficient experience with. Suffice it to say this, that wherever it's possible to put things in statutes rather than in regulations, they ought to be put in statutes rather than regulations. That's a general principle and we've all lived in the real world long enough to know that there must be exceptions to that general principle. In order to indicate which are the appropriate exceptions, that's where one ought to have a little more of the kind of experience that's required before one holds forth on that.
Mr Malkowski: Just finally, talking about the reasonable accommodation and looking at the Human Rights Code and Bill 79 itself, do you think there could be a potential conflict or a potential constitutional challenge?
Mr Borovoy: I'm not sure about a constitutional challenge. As far as conflict is concerned, I would gather that the Human Rights Code would have the standard for one purpose, that is, to prohibit discrimination. The standard would exist in the employment equity bill because it's designed there to increase numbers of employees coming from certain groups, so there is not, I would think, strictly speaking, a conflict. It would then be a matter not of logical contradiction but a matter of public policy whether you wanted to harmonize the two. But I think it's probably fair to say that there are somewhat different objectives in each case.
The Chair: Ms Carter, it will have to be very brief because we're running out of time.
Ms Jenny Carter (Peterborough): Okay. I'll ask a briefer question than the one I originally thought of.
Mr Borovoy: I have to give you a brief answer too.
Ms Carter: Thank you for a very powerful and different presentation. Your first recommendation suggested that vigorous recruitment among the designated groups should be part of the picture. What would that consist of? Could you explain that.
Mr Borovoy: Among other things, it could consist of advertising in the media of those groups, going to black organizations, aboriginal organizations. It might entail going to meetings and urging those people to apply. One idea our organization came up with a few years ago is you might go to some of the organizations -- you might have employers urge employees to go to some of those organizations and pay them a finder's fee in the way that employment agencies work. We've had some experience with employment agencies that you may know of in another context.
But as far as I'm concerned, I think there would be a lot of value. Go to some of those organizations, aboriginal and others, and say: "This is what we need. You'll get a percentage, the way an employment agency would get, if you recruit some good people for us." Those are some of the ways that you might have a more effective outreach program.
The Chair: We've run out of time. Mr Borovoy, we find your contribution to the deliberations of this bill very useful. We thank you both for coming today.
Mr Borovoy: Thank you.
Mr Curling: Mr Chair, may I just comment here? Not you; thank you very much, Mr Borovoy.
Mr Borovoy: In other words, get lost.
Mr Curling: A new matter altogether. It becomes so important and relevant that we have the Employment Equity Commissioner before us to clarify some matters, although we have tried on a number of occasions to have the minister here. I'd like to move a motion that we maybe, because of the limited time, request that the Employment Equity Commissioner come before us before the public hearing is over.
Mr Anthony Perruzza (Downsview): A point of order, Mr Chair.
The Chair: It is a different motion.
Mr Perruzza, we've dealt with this in two different ways and this is a different motion; yes, connected, but different. So I'll deal with the motion and I would like to urge the members to deal with it as fast as we can so we can get on with the next deputation. Mr Curling has moved the motion. Do you want to speak to that?
Mr Curling: No, we want to move as fast as possible, as you said.
Interjection: Recorded vote.
The Chair: On a recorded vote. All in favour?
Mr Derek Fletcher (Guelph): Chair, 20 minutes?
Mr Curling: What do you need 20 minutes for?
The Chair: Mr Fletcher has called for a recess, so a 20-minute recess unless we can begin earlier. If we can, we will do so.
The committee recessed from 1037 to 1050.
The Chair: A motion was moved by Mr Curling.
All in favour?
Ayes
Curling, Jackson, Miclash, Murphy, Tilson.
The Chair: Opposed?
Nays
Akande, Carter, Fletcher, Malkowski, Mills, Perruzza.
The Chair: The motion is defeated.
Mr Perruzza: Would it be appropriate to put a motion on the floor to say that they not play any more games today?
The Chair: No.
ORC CANADA INC
The Chair: Mr McLarren, welcome. You have half an hour for your presentation.
Mr Philip McLarren: My name is Philip McLarren. I'm responsible for the Canadian operations of ORC, which is part of the worldwide management consulting group Organization Resources Counselors. Our firm is involved specifically in the area of deployment and management of people. We have 11 offices in six countries. Our work in the employment equity area is well established in the UK, US and in Canada.
We started our employment equity practice in 1983 and as part of it we organized and run what is now the largest employment equity and human rights diversity management network of companies in Canada, called the Corporate Equal Opportunity Group. It consists of 76 member companies at the present time, employing over 800,000 employees. There are 60 of these companies that are provincially registered and 56 of them have employees in Ontario. We have similar forums in the US, where there are 150 companies which meet several times a year, and in the UK, where there are 40 companies.
The remarks I'm going to make today are the remarks of ORC Canada and don't necessarily reflect the views of our clients and our members of the Corporate Equal Opportunity Group. The first thing I want to address is the extent to which Bill 79 may or may not address the need for employment equity. As we've watched the debate evolve over the last few weeks, we've been concerned to see too many people positioning employment equity as a numbers issue rather than a merit issue. In fact, employment equity is intended to ensure that merit governs employment systems and procedures and that success in doing so is measured by numbers.
Judge Rosalie Abella, in her royal commission report on equality in employment, which incidentally has a worldwide reputation now as one of the best treatises on employment equity that has ever been written, has coined the term "employment equity." She said "systemic discrimination requires systemic remedies" and "remedial measures of a systemic and systematic kind are the object of employment equity and affirmative action." Numbers are not the object, remedial measures are.
Most employers agree that systemic discrimination is alive and well and living in Ontario and that a government prod is necessary to get employers to pay attention. Bill 79 is that prod. It is a necessary catalyst. However, modifications are needed, modifications that will produce clarity of purpose and effectiveness of implementation.
In our written submission, which you all have, we make a number of specific suggestions for your consideration. Those suggestions are intended to sharpen the intent and the resolve to deal with real, practical problems that inhibit the potential of the bill to be an effective catalyst, as it should be. The principal recommendations we make are as follows:
(1) Ensure that merit is acknowledged as the objective of employment equity by inserting a paragraph in the preamble which is in our paper; amending subsection 5(1), "legitimate requirements," as shown in our paper; and adding clause 11(1)(f), employment equity plan.
(2) Enable multilocation employers to develop the regional components of their plan by using configurations of workplaces consistent with established practices but subject to challenge by the Employment Equity Commission, bargaining agents, employees, advocacy groups and in fact anybody else. This is dealt with by adding a definition of "workplace" to the definitions and by amending section 26, allowing for the challenge of that definition.
(3) Acknowledge that seniority rights on layoff or recall are legitimate for employment equity purposes, but recognize the potential constitutionality challenge that has been raised by citing the precedence of the Human Rights Code and the charter over seniority rights. In our paper we quote two recent cases, one from the Supreme Court of Canada and one from the Ontario courts, dealing with this specific issue and challenging and in fact saying that seniority rights don't have precedence over employment equity.
(4) Ensure employment equity is established as a right, not a bargained commodity. Employers have the responsibility to analyse, plan and implement programs. Bargaining agents and employee representatives have to ensure that the process effectively protects and promotes employee rights to fair and equitable treatment. We're suggesting that section 14 should remain fairly much as is except that we should change the focus from joint responsibilities to consultation, bearing in mind that these roles should be distinct and separate.
(5) Provide for the regulations to carefully prescribe information to be provided to bargaining agents and to employee representatives in order to protect the proprietary interests of companies. We need to remember and understand that the main difference between public sector employers and private sector employers is that private sector employers depend on differentiation of product and access to market. Anything that has to do with those subjects needs to be protected. Therefore, the information that should be available in a general sense to bargaining agents and to employees generally should be prescribed carefully.
(6) We need to streamline the enforcement process in order to speed up the dispute resolution process. The proposed process in the bill provides for the commission, a tribunal and the Human Rights Commission, all three of them having a role to play. This issue of enforcement has been the biggest single problem at the federal level with respect to understanding and making effective the Employment Equity Act and the federal contractors program.
1100
It is important to clearly establish that the role of the Employment Equity Commission is compliance with meeting the requirements of the act and education with respect to what employment equity is and helping employers and members of the designated groups to understand and develop employment equity plans. The role of the Human Rights Commission should be to be arbiter on all disputes and complaints, and all disputes that may not appear to be complaints of discrimination should be treated as alleged non-compliance on a prima facie discrimination basis. In other words, if the Employment Equity Commission cannot resolve a dispute with the parties involved, they should immediately refer it to the Human Rights Commission, which would treat it as a prima facie discrimination case and proceed accordingly. In our paper we give a specific example of how that can work and thereby eliminate the need for an Employment Equity Tribunal, which we consider to be an obfuscatory type of arrangement which is going to cost a lot of money and we don't need in these times of fiscal restraint.
I hope the comments we have made in our paper have been helpful and I look forward to your questions.
Mr Jackson: Thank you, Mr McLarren, for an excellent brief. Of course the time has prevented you from going into all the detail contained in here, but you have been specific with your amendments and that's extremely helpful, given that we begin clause-by-clause in four or five days.
I'm interested in two elements. In section 11 in terms of the plan, you offer us expanded wording which actually in fact reflects some of the points raised by Mr Borovoy, who preceded you. Perhaps you may wish to expand on your direct reference to the Human Rights Code as it relates to handicapped persons and constructive discrimination, and then I have another question about seniority rights.
Mr McLarren: You're talking about clause 11(1)(e)?
Mr Jackson: Yes, the filing of the employment equity plan.
Mr McLarren: That's not really the filing of the plans.
Mr Jackson: I'm sorry, forgive me, just the plan.
Mr McLarren: That's, "Every employer shall prepare an employment equity plan in accordance with the regulations," and it must provide for five things. We're adding that the plan must assure that:
"In any situation where there is a need for goals and timetables that employment decisions take into account the merit of the candidate based on their having the necessary skills for entry into open positions or for whom the employer could reasonably be expected to train the candidate to be so qualified."
That wording and the rest of the wording is taken directly from the regulation. That's why I used those particular words.
Mr Jackson: Second, I appreciate your giving a fuller explanation on seniority rights, because that's become quite contentious. I very much like your wording that you present to the committee, especially in recognition of the recent Supreme Court decisions. But I wonder if in your experience, since you talk about a permissive system of cooperation in developing amendments to collective bargaining, you're familiar with any existing collective agreements that have achieved this.
I have a background in negotiating school board contracts for 10 or 11 years, and we had program protection clauses which disrupted seniority in order to make sure that teachers who were qualified stayed in the system so that we could continue teaching that subject. Otherwise, if you did a straight seniority, when you had declining enrolments, you'd have the wrong teacher in the wrong classroom. So it has been achieved. I wondered if you had some private sector examples where what I just call a disruption of the pure seniority clause has occurred successfully, because that's what's implicit in your recommendation.
Mr McLarren: Yes, there are situations in the private sector where there are seniority clauses that have been amended, negotiated, dealt with. There is one company that has about 48,000 employees and I asked them specifically if I could mention their clauses in the paper. They said they would rather not because they're right in the middle of negotiations now and they said they didn't want anything to disturb that. But what they have done I consider to be the sort of thing that ought to be done. I can certainly ask their permission again, if you ask me a specific question, and provide you with the details.
Mr Jackson: I recall when Susan Eng was before another committee dealing with the issue of hiring I raised the question with her, because she has the dilemma as the chair of the Metropolitan Toronto Police Services Board that in declining employment situations all these equity plans are thrown into disarray because the last hired are the first laid off, so we're actually reversing the trend of corrective employment practices. Again, I wondered if anybody had put their mind around program protection, if in fact this is a positive equity program, that there be some sort of recognition in legislation for program protection when layoffs do occur.
She thought the idea had merit as it relates to the police services board and its employment activities. You've hit on that, but I wondered if you had a comment about the government taking a more aggressive stance in legislation in this area.
Mr McLarren: I think the government could take a more aggressive stance in legislation, but I think you need to talk to some constitutional experts and determine what it's possible to do in the light of the charter and in light of the Human Rights Code.
Mr Fletcher: Thank you for your presentation. I'm going to touch on seniority issues. We've heard a lot about seniority being a barrier to employment equity. If I'm not mistaken, most of the seniority rights people have, workers have, are in organized workplaces that have been negotiated through a collective agreement. When there's a collective agreement that is signed, it's signed by both sides and both sides are agreeing to certain aspects of a collective agreement.
My question is, if seniority is such a barrier, why do companies sign collective agreements to say it's all right for seniority rights to exist within a collective agreement? In other words, one of the better ways to remove seniority is through the collective bargaining process.
Mr McLarren: As I said in my paper, employers agree that seniority is okay on the face of it. What the issue is is that the courts are now finding that there is reason to question whether or not seniority rights are appropriate in the light of human rights legislation. The two cases I quote, the Domtar case and the Renaud case, both hold that the human rights legislation takes precedence over a seniority right.
Mr Fletcher: I recognize those two cases, and also the specifics of those cases and that they are a little different from what we're talking about as far as the right to advancement, because seniority rights do protect advancement. I'm just saying that I think, rather than go through the courts, there is a possible way of getting past the adversarial part of trying to remove seniority rights as a barrier to employment equity, and that is through the bargaining process.
Mr McLarren: I think it's far better, by the way, for the two parties, the employer and the union or the employee representatives, to come to an agreement on some kind of accommodation voluntarily, obviously.
Mr Fletcher: I think so too.
Mr McLarren: I'm just saying that we should be aware of the fact that there is a possible legal challenge that could take place.
Mr Fletcher: Yes, there is. One other point is that some groups have said that employment equity legislation should be tough, it should be the heavy-handed government coming down and making sure that everyone is doing it, and I recognize in your brief you say no, that isn't the way to go, because when you start really pushing people's backs against the wall, there is going to be a fight in that sense. After it's been into the courts, it could take years before we could even implement a policy until the court challenge is heard. I think the cooperative approach is much better, and when we can have most of the people who are going to be affected -- business, unions, the designated groups -- agreeing to the legislation, or at least saying, "Well, it's necessary," we can have a more cooperative approach to employment equity. I agree with you wholeheartedly on that.
Mr McLarren: This is a very delicate business that you're about. You've got to be very careful to come down the middle in such a way that people will support it actively and in a positive fashion. I have a colleague who was responsible for developing policy for government for quite a few years who said, "You always know you've got it right when none of the stakeholders like it."
Mr Fletcher: Thank you. Did you hear that, Alvin?
1110
Ms Carter: Thanks for your presentation, and I particularly liked the first line, "The concept of employment equity is accepted by large employers in Canada." I think you're in a very good position to be able to state that.
Your submission does indicate a fair amount of support for the present regulatory and legislative structure of the bill. We've had a lot of presenters saying that a lot of what is in the regulations should be in the bill. Why do you not take that line? Why do you feel that it's good that the regulations remain the regulations?
Mr McLarren: For exactly the same reason as the last comment I made to Mr Fletcher. You're dealing with something that's a very delicate situation. Your objective has got to be to pass a law that will work, and the more that you put in the bill -- and I can understand the arguments that say, "The more you put in it clarifies things," but, by the same token, the more you put in the less flexibility there is for the people who have to make this stuff work.
The objective of the whole exercise is to identify and root out systemic discrimination so that you don't have to worry whether merit is an issue or not. That's the issue. So you want to create a piece of legislation that provides that gentle nudge to make sure that people do something and do something effective, and by filling up the legislation with a whole lot more "thou shalts" it is going to be very difficult. You can always amend legislation and you can always amend regulations as you get experience, but don't start off doing what some other jurisdictions do: They try to solve all the problems at the beginning.
Mr Murphy: Thank you very much for your presentation. I appreciate your comments in the preamble on the issue of merit and I think you're quite right that the objective of an employment equity bill is really to make sure that it is merit that governs decisions and to eliminate ultimately those unintentional barriers to the promotion and consideration really of merit across the spectrum.
I want to focus, if I can, on a couple of specifics, and one of them is your definition of "workplace." We have heard from both the employers and unions and others about the issue of having flexibility between unions and employers to negotiate around more traditional settings as opposed to putting everyone at one table, because it may not be workable. I have a concern, I guess, about "workplace" because there may be some circumstances where you'd want a division or some sort of more normal structure being your organizational principle for a plan. I think it was the Business Consortium on Employment Equity came and they had employers who said: "Well, sheet metal production and bread sales are the two companies we own. It doesn't make sense to put them together but we'd have two plans." My concern is "workplace" might focus it then, because if you had a separate head office and a factory, that might be two workplaces where really you should have one plan for both of those operations. I wonder if you could comment on that.
Mr McLarren: It was precisely because of the comments that we watched being made to this committee, and the comments we've had made by our own clients, that this issue of workplace is really important.
In the private sector, you're going to have as many combinations of possibilities with respect to a multilocation company as there are multilocation companies. You could have an organization that's got 400 stores in Ontario but they can make one plan for the whole bunch of them and there's no problem, and you'll have another situation where they've got five plants and every one of them is totally different and they're different businesses. I know exactly the companies that were here making this comment. Therefore, what do you do? Do you change the definition of "employer"? No, I don't think so. I think the easiest way, based on the wording of the bill as it stands now, to get at this is with a definition of "workplace" which is flexible, provided that you also enable people to challenge the definition of "workplace" where a group says: "Why are they doing that? Is that really appropriate?" Then get the Employment Equity Commission to make a ruling, and if they can't come to an agreement in the enforcement thing, I'm saying, push it over as a prime facie discrimination case.
Mr Murphy: I guess that helps solve my concern, is that if you allow an opportunity for negotiating between a bargaining agent or other representative employee group and the employer about what it can mean, you might provide that flexibility.
The other issue I have relates to the training issue that you referred to at page 18 and I think my friend Mr Jackson referred to. Obviously there are going to be some circumstances where one of the positive measures you could take is training. The question that we've often heard is: How far do we need to go to make sure that it's a reasonable effort? You seem to have incorporated the Human Rights Code standard which is quite a high one: the undue hardship test, it seems to me, on page 18, in terms of training.
I'm wondering: Is that what you're envisioning, the extent of the employer's obligation to provide training to be, is that it should provide it up to the extent of undue hardship, or is it reasonable effort?
Mr McLarren: That actually, Mr Murphy, is a very good question. I used the words because the words were already -- I lifted the words from 5(1) and from the regulations, combined those two -- which you can appreciate -- in those words. Yes, there's a fairly broad question of reasonableness as far as the Human Rights Code is concerned.
I think that the wording I've suggested here is probably okay, bearing in mind that there very probably could be litigation that would resolve what "reasonable" means, okay? But that's exactly the same issue that comes up with respect to the Human Rights Code.
That hasn't been tested yet in litigation. We don't have jurisprudence. All that has got to happen. You know, no matter what you do with this bill, it doesn't really work until it has been tested in litigation, and that's a long process. That's another reason why you want to be very careful about how complex you make it because the more complex it is, the more litigation you're going to have.
The Chair: Mr McLarren, we appreciate the submission you've made today and we thank you for taking part in these discussions.
JUDITH KEENE
The Chair: Judith Keene, welcome. I think you were here for a few submissions. You know what it takes. Please start.
Ms Judith Keene: Yes, I actually had the pleasure of addressing this committee in 1990 over alternative dispute resolution.
But since the committee is now differently composed, I suppose I ought to say a couple of quick words about those aspects of my background that indicate why I'm here. I am on the board of the Alliance for Employment Equity, but I'm here in my personal capacity today.
In my career I've certainly had varied employment. I've been a nurse, a university teaching assistant and a lawyer. I've worked in management and as an employee. But I guess the major reason I'm here today is that, for the past 13 years, I've done an intensive study of anti-discrimination law. That study has produced now a second edition of a legal text on the Human Rights Code which I recently published.
I've been reading the Hansard reports of these proceedings, so I'm reasonably familiar with what you've heard. I don't want to repeat points that you've already heard. Due to time restraints, I want to pick, from the many serious issues, three that I feel need your urgent attention.
The first of these that I found very distressing was the political posturing over the merit principle. Having had experience in hiring and certainly a lot of experience in the workforce, I know that employment, certainly hiring, is a very inexact science. Very few employers actually have job descriptions, much less job descriptions that are up-to-date and focused on the skills that they need.
I've certainly tried, when I've been hiring, to create job descriptions, have them up-to-date and so on. But even then, when you're finished a job competition -- and particularly in today's market where you have lots and lots of qualified people and very few jobs -- you can never be sure at the end that you've done it right, that you've got the skills that you need, that you've got the people you need.
Overall, the proof is that despite overwhelming evidence of skill and education and motivation among the groups designated in this bill, they are not where their skills should have placed them in the workplace. This telling evidence that the merit principle in employment exists as an ideal, not a reality, is, I think, very, very important.
I completely agree with the previous speaker and with the speaker from NAC, Judy Rebick, that we'll come a great deal closer to achieving a merit system if we establish effective employment equity legislation.
1120
I'm certainly in favour of a real merit system and I look forward to the revitalization of Ontario business that would occur with employment equity. A truly businesslike approach to employment practices combined with the infusion of new ideas and approaches that would accompany employment equity would do a great deal to pull business out of its current slump. I know you've certainly heard some deputations to that effect.
I want to speak very briefly on something you might be wondering, which is having to do with Mr Borovoy's presentation. It's funny that Mr Borovoy, and the Canadian Civil Liberties Association, agrees with all of the principles of people who are seeking employment equity legislation. He acknowledges the massive state of employment inequity in the province. He thinks goals and timetables are okay. He says that having a representative institution as fast as possible is a goal to look for.
I guess the challenge, as members of this committee have pointed out, is, what do you do in legislation to effect that? I guess the trouble I have with Mr Borovoy's presentation is that his solutions aren't practical.
He suggests, first of all, that we change the Human Rights Code to reverse the onus of proof. That's an interesting suggestion, but we already know that one-by-one complaints don't work; they don't have the effect that we're seeking.
The second thing is to ensure that employers recruit vigorously. How are you going to police that?
Thirdly, ensure that employers have acceptable job standards. Once again, how are you going to police that? I think, with the greatest respect to the Canadian Civil Liberties Association, this is a recycling of old ideas and it's not going to be effective.
I'll pass to the second issue. That's the urgency of passing legislation that is truly preventive. It's discouraging to study the progress of human rights in this province, especially when we realize that we have had consolidated human rights legislation in place and affecting the workplace for 30 years and we've had statutes before that that weren't consolidated. So despite the existence of human rights legislation, we have a situation in which we have qualified women, visible minorities, aboriginal people and persons with disabilities who, despite their qualifications, are unemployed or underemployed. The numbers in the workplace are vastly disproportionate to the numbers in the population. You've seen and heard about this, so I won't go on.
At the time that I published the second edition in 1992 of my book on the code, I was so excited by employment equity legislation being passed I even put something in the preamble. If I can quote a little bit, it goes like this:
"No social change can be accomplished by legislation and government action alone, but there is more for government to do. It is clear that the effectiveness of the Ontario Human Rights Commission has been allowed to decline and that the complaints investigation system is in dire need of improvement. Even more importantly, preventive legislation is clearly overdue, for two reasons. The first is that, in the absence of preventive legislation, a complaint-driven system fights a losing battle trying to keep up with demand....The second and more compelling reason is that preventive legislation goes a long way toward removing the burden of achieving equity from those who have already been victimized."
This is our chance at preventive legislation, but what have we got? I'm afraid we have voluntary employment equity, which has been proven not to work. Furthermore, I'm afraid it is based on unclear standards and has an extremely inefficient enforcement system.
I want to give you a couple of examples of some problems. With the current legislation and the regulation, the following scenario is possible. I very carefully picked sort of a middle-of-the-road situation, not the worst case:
So the bill becomes law, unchanged, on January 1, 1994. Employer X is a private sector employer who employs 101 people who are not represented by a union. Despite the fact that Hamilton, where X Ltd is located, is a diverse community, 98% of the employees of X Ltd are able-bodied white men. There are three women on the office staff, one of whom is a woman of colour.
Between January 1, 1994 and January 1, 1996, employer X collects workforce information, reviews employment policies and drafts an EE plan. The employment equity plan is finalized on January 1, 1996, so they've met their time limits, and a certificate is sent to the Employment Equity Commission.
Here are the realities behind this situation: Employer X is not really sure what is required by the act. Furthermore, he or she is generally resentful of being told what to do by the government. Besides, employer X feels comfortable with the workforce at X Ltd just the way it is and is a little fearful of having people in the workforce that he or she is not familiar with. Finally, employer X is disgruntled at the discrimination against X Ltd, which would have much less to do under the act if it had two fewer employees because of the "small employer" stuff in the regulations. Because section 10 of the act contains no examples of what employment practices must be reviewed, employer X feels justified in keeping the review quite cursory.
Pursuant to section 15 and the regulations, employer X consulted with employees, not forgetting the three women. The women are not very forthcoming with suggestions, because they know they can be replaced. The regulation has some requirement about making certain information available to employees, and employer X decides to take advantage of the regulatory provision that allows the employees to be told that the information is accessible in the president's office. Nobody goes to check it out.
Neither section 11 of the act nor the regulation requires posting or filing of plans. If anyone were to review X Ltd's employment equity plan, they would see that it has little in the way of content, and in fact the plan does not even conform to the form implied by the wording of section 11 of the act and part IV of the draft regulation, so it's a bad plan.
Because employer X is allowed to file a certificate with the commission -- just a certificate -- there is leeway to misrepresent the actual content of the plan. Because employer X need not show the plan to the employees, he or she can get away with compiling the information listed in the draft regulation and, once again, informing employees that information is available in the president's office for any individual who is brave enough to go to the president's office and check.
In 1999, another certificate is filed with the commission by employer X. It certifies that the old plan has been reviewed and a new plan is currently in place. Meanwhile, no real efforts have been made by employer X to implement employment equity, and there is essentially no progress.
In 2000, a brave employee decides to challenge employer X, because there are no employment equity results observable at X Ltd. She will not succeed. Section 26 of the act confines the inquiry to whether the employer has failed to take steps or to achieve goals and timetables required by the employer himself or herself. If the employer has decided to do almost nothing and to plan for minimal results, it will not be difficult to prove compliance with that plan.
Where is the commission in all this? The commission has a monitoring responsibility, but it does not get to see employment equity plans without specifically requesting them. I think it's reasonable to assume that the commission won't have the adequate resources that it needs. This seems to be the trend these days. So employer X can go on as usual for some considerable time without interference. Once again, I think, with legislation, we have to go by what can happen, not what should happen or what might happen. I'm meaning no disrespect to the commission whatsoever. I'm talking about, they didn't get around to employer X.
The commission may eventually notice that there has been no progress made according to the data on the certificate, or the desperate employee may approach the commission. As a result, the commission may audit employer X.
Suppose this happens in 2003. The commission finds that the EE plan put in place seven years ago was flawed. Employer X refuses to make changes and is brought forward to a tribunal in 2004. As there is no clear guide as to what reasonable progress is, this case is dragged out, as the tribunal attempts to interpret the act and the regulations as to what a good employment equity plan looks like.
In this scenario, 10 years have gone by with not one change. I repeat, this is not a worst-case scenario. This is a response to an urgent need for employment equity. I'm very troubled by this. I'll go to the third issue.
The third issue almost certainly arises from a mistake in the wording of the legislation. The present wording of the bill appears to restrict the right to get redress for individual incidents of discrimination. You know and I know that we're not going to be able to snap our fingers and have discrimination disappear from the workplace simply with the passage of an act. There will be incidents of discrimination. There will be cause for complaint. However, I'm a little disturbed about what could happen under the act with the present wording, and I do think it needs some fixing.
1130
Here's what would happen to a person who made a complaint about discrimination in hiring in an EE workplace. Right now, with the Employment Equity Act in place, if it were in place, the person would make a complaint to the Ontario Human Rights Commission. After the passage of the Employment Equity Act, this route could be effectively eliminated.
The problem stems from the wording of subsection 51(3). It says that if a complaint arises from a practice that is addressed in the employment equity plan, the Human Rights Commission shall refer the complaint to the Employment Equity Commission. It doesn't say what it means by the word "addressed," and I would suggest that addressed could mean anything from "mentioned" to "dealt with."
It then says that if the Employment Equity Commission thinks that the EE plan addresses the practice in a reasonable manner and over a reasonable period of time and the employer is making reasonable efforts to implement the employment equity plan and to achieve the goals in accordance with the timetables, the commission will take no further action. This could mean that the person who is suffering from discrimination right now has no remedy except to wait and see if the employment equity plan will help somebody else in the future.
This section was probably included to recognize that employment equity initiatives will take some time to get into place, but it may have the effect of taking away the right of individuals to a remedy for discrimination that they have experienced, and I do not think that was the government's intention. I hope that they'll take a look at this, because it certainly has me extremely worried.
What solutions do I suggest? I'll try to cut to the chase here. I urge you to read the brief provided by the Alliance for Employment Equity. It contains, among other things, a handy line-by-line review of ways in which the bill could be amended to achieve effective employment equity. We worked very hard on this. Our statutory language may not be perfect but, as I say, it is a line-by-line suggestion. It couldn't be more detailed.
To summarize my points here, please make the act inclusive. There is no reason that barrier removal and positive measures should not address sexual orientation, for example. Apply the act to all employers so that they are all on the same footing, no exceptions. This, by the way, will create an economy of scale in terms of the expenses the employers need to effect employment equity. If all employers are covered, there'll be more incentive for consultants and so on to develop packages at competitive pricing. You have a bigger market, you have a cheaper system.
Secondly, don't leave goals and timetables to the discretion of the employer. The commission has access to the data needed to set realistic numerical targets. Voluntary measures are truly not enough. We've seen that.
Thirdly, make the bill clear. For example, avoid using two different expressions for the same idea. We've got "positive measures" in the act. We've got "qualitative measures" in the regulation. I'm a lawyer. I know what they're going to do with this. They're going to argue -- and there's some legal basis in this; this is classic statutory interpretation -- that qualitative measures are called qualitative measures because they're different from positive measures, and there'll be years of litigation until we straighten out what a qualitative measure is. There's no dictionary definition for that term. It's not obvious what it is and there'll be litigation. There will be litigation about any unclarity.
I might add that making it clear also includes putting a lot of what's in the regulation in the act, and I differ from the previous speaker on this. That's because it's not -- well, it's partly a question of clarity, but the second problem is democratic process. An act to be amended must go through the Legislature. Regulations to be amended, changed or swept away have nothing but cabinet fiat and they're gone or they're changed or whatever. There is no real public debate. There is no scrutiny.
Fourthly, make the rights enforceable. Require that employment equity plans be posted and filed with the commission. Allow individual complaints about implementation. Give the tribunal effective order power. That's something else that's missing.
Fifthly, ensure that the act does not take away rights that now exist under the Human Rights Code. I'm sure that can be done without too much difficulty.
I think today we're at the proverbial crossroads in which we can choose to make employment equity legislation effective or simply reproduce the same mistakes made by the federal government in its employment equity legislation. There's always a vast difference between talk and action, between rhetoric and results. Perhaps this is nowhere more true than where entrenched privilege and human rights collide.
There is a cost to any choice and I urge you to weigh the short-term satisfaction of those who are content with the status quo against the long-term cost of social alienation and the appalling and expensive waste of human potential. I implore this committee to press for change to this bill that would implement workable, mandatory employment equity legislation in this province. Thank you.
Mr Malkowski: Thank you. I was listening to some other groups present who were mentioning that they should include the "disabled" definition under the legislation instead of the regulation. I'd ask your comment on that.
Ms Keene: My position is that anything important, anything that is key, should be in the legislation. There should be public debate about any change and that's not possible with regulations. Therefore, I imagine the effective definition of disability ought to be within the act.
Mr Malkowski: Last point, the Human Rights Code, in terms of reasonable accommodation and the employment equity legislation, where it talks about "reasonable effort," there are two different definitions there. Do you think it would be possible for the employers to then use the Employment Equity Act to go to courts to get clarification on which they need to follow?
Ms Keene: Yes. I think that wherever lawyers are representing their clients, they will take advantage of any confusion, any room for question and, yes, there will be litigation. I've had experience with -- by the way, I'm not saying that employers are bad, horrible people. This is experience through watching the Human Rights Code and the way it works in employment, the Employment Standards Act, the Pay Equity Act and so on. I think it's true that if litigation is possible, litigation there will be.
Mr Curling: Thank you very much, Ms Keene, for the presentation. You have put a face to all of this legislation, very well so, and I think that people can relate to that. Because of the two minutes, what I'll do is ask you what are your impressions on putting the equity commission together, pay equity, employment equity, will that help to make them more effective?
Ms Keene: I think there is a difference between putting the commissions together and putting the tribunal together. The commission, as you know, has a great deal of work to do -- all of the commissions have a great deal of work to do in education and setting of standards, in looking into things and investigation and in mediation, all in terms of fairly complicated legislation that has quite unique differences, each of them, so that the commission being that kind of body, I suspect that the best setup is to have different commissions, otherwise I think things will run the risk of being pushed aside.
In terms of a tribunal, that's where push comes to shove and there is a dispute which cannot be resolved, and I think it's certainly possible for a tribunal, always given appropriate resources, to deal with complaints under all three of the pieces of legislation that are discussed in terms of a rights tribunal.
Mr Curling: Thank you.
Mr Tilson: Thank you for your comments. We don't seem to have your written presentation. It would be --
Ms Keene: No, I thought I'd give you a treat and give you nothing to read, but I'm most happy to send in something in writing on any point you like.
Mr Tilson: Actually, I was trying to pay you a compliment because your presentation is excellent and particularly your comments on the workability of the legislation. If you are going to put forward legislation, obviously it needs to work, and you're saying it's not going to work.
Ms Keene: I think there are some flaws.
Mr Tilson: I would appreciate it if you could give the clerk -- although we do have Hansard, it would be useful to have that. My question has to do with the whole topic of your observation that this type of legislation, it's almost guaranteed that there's going to be substantial litigation, just to talk about definitions of words, what things mean.
A question that I have been asking different delegations is that we already have a commission that deals with the topic of discrimination and obviously everyone is coming to me and saying it's not working. Wouldn't it be more appropriate to make the system we already have work and have one bureaucracy, namely, the Human Rights Commission, as opposed to creating another one that is going to guarantee litigation, aside from cost, aside from -- you've raised one observation about the potential of conflict in jurisdiction. I'm sure there are all kinds of others we haven't even thought of.
Ms Keene: In a word, no. I don't think it would be useful. The Human Rights Commission and the Human Rights Code, in the first place, deal with many more areas other than employment and they deal with one-by-one complaints. The purpose of employment equity legislation is to prevent the need for complaints. It's a systemic change. It's a bit like pay equity. If we litigated every difference between a woman's and a man's salary in this province, we'd die.
That's the point. This whole legislation is about systemic change. It is about making a non-discriminatory operation part of doing business, just a nice, smooth part of doing business, and that demands quite different considerations than a one-by-one complaint system.
The Chair: Ms Keene, we found your presentation very instructive and we thank you.
1140
ONTARIO NATIVE WOMEN'S ASSOCIATION
The Chair: The Ontario Native Women's Association, Susan Parsons, welcome.
Ms Susan Parsons: I would just like to state that the Ontario Native Women's Association feels that our submission of this brief and our presentation to the standing committee on administration of justice on Bill 79 is not to be construed in any way as acceptance of this legislation. Our purpose is to bring forth a message to the government of Ontario on behalf of aboriginal women of Ontario as related to Bill 79.
Aboriginal peoples have a special and distinct historical and legal relationship to governments in Canada. This relationship is recognized by the government of Ontario in the Statement of Political Relationship. Because of the unique values and circumstances of aboriginal peoples, special legislative provisions are required in developing employment equity legislation jointly with aboriginal leadership.
The Ontario Native Women's Association recommends that an aboriginal employment equity advisory council be established with the authority to respond to the needs of aboriginal peoples in employment equity and that this advisory council be given a legislative mandate to address the needs of aboriginal communities.
While there has been some progress in certain areas of their daily living, there has been no change whatsoever in the socioeconomic advancement of aboriginal women. It is indeed tragic that aboriginal women in Ontario must find themselves at the very bottom of the socioeconomic ladder. Whether one examines the educational circumstances, the employment situation, the factors of family stability, criminal involvement ratios, alcohol and drug abuse rates, and personal health and wellbeing, this holds true.
According to Census Canada in 1981, less than two fifths of aboriginal women 15 years and over were employed at the time of the census, although up to half of the aboriginal female population 15 years and over was working at the time of the census in 1986.
This apparent improvement of employment opportunities for aboriginal women is diminished when it is considered that those of working age still have the lowest participation rate in the labour market. It is further diminished when employment statistics are examined regionally, rather than provincially. It may be true that in 1986 50% of aboriginal women were employed in the more southern regions of the province, but this is certainly not the reality experienced in northern regions of the province where many communities face unemployment rates of well over 80%.
While the percentage of aboriginal women who are not participating in the workforce has decreased, it still remains almost double that of aboriginal men. In the recently released 1992-93 statistics for aboriginal participation rates in the Canadian Jobs Strategy, aboriginal women comprised only 12.59% of the total aboriginal participation. This consistently higher non-participation of aboriginal women is likely to be due to a lack of accessible education and trade skills, as well as a lack of training and employment opportunities. The lack of opportunity to upgrade may also reinforce a traditional role for aboriginal women.
Although aboriginal women in Ontario have close to the same workforce participation rate as non-aboriginal women, there's a large discrepancy in annual incomes. According to Statistics Canada in 1986, 83.2% of aboriginal women earn less than $20,000 a year, with 58.9% of them earning less than $9,999 a year. In comparison, 77.1% of non-aboriginal women earn less than $19,999 annually, with only 48.5% of them earning less than $9,999 annually. In comparison, for non-aboriginal men, 63.3% earned over $19,999.
It is evident that aboriginal women in the province of Ontario do not experience equity in employment. It is not overt discrimination that is the cause, however, but rather the many socioeconomic conditions within aboriginal communities, on reserve, rural and urban, that act as barriers to fair and equitable employment. The inadequate economic development experienced in most aboriginal communities requires the search for employment in other areas and locations, and the inadequate and inappropriate educational systems, both on and off reserve, contribute to the lack of life skills, job readiness, education and training, all of which are needed to participate in the workforce.
Bill 79 does not address the needs or concerns of aboriginal women. There has been a lack of aboriginal input into the design of the proposed legislation, particularly as it affects aboriginal peoples. Bill 79 is blanket legislation. It covers four designated groups, without providing for the very different and diverse needs of, and barriers faced by, each group as related to employment equity. As a result, the unique situation of aboriginal women has become confused and lost among that of the other designated groups. Because aboriginals have different needs and face different barriers, legislation is required that specifically addresses these needs and surmounts these barriers.
It is critical that Bill 79 and any resulting employment equity programs take into account the specific circumstances which give rise to inequality of opportunity for each of the designated groups. If these are not addressed, Bill 79 and its employment equity programs are not likely to succeed.
After researching and analysing the proposed legislation and speaking with native organizations and aboriginal women, the Ontario Native Women's Association draws the following conclusions.
Employers in Ontario are implementing employment equity policies and programs, such as Ontario Hydro and the Bank of Montreal. Aboriginal women are being hired and retained. As noted above, 50% of the aboriginal female working population is employed. The problem is that a lack of education and training is keeping almost 59% of all employed aboriginal women at an annual salary of less than $10,000 a year and it's preventing upper mobility into other occupational groups.
Aboriginal people must be recognized as having a unique history and status, as entrenched in the Canadian Constitution. The Statement of Political Relationship has established a nation-to-nation relationship which must be respected.
Aboriginal people require full access and opportunity to undertake relevant education and/or training specific to their needs in order to adequately prepare for employment in a chosen field. Adequate funding must be available for this to occur.
1150
The Ontario Native Women's Association strongly recommends that an aboriginal employment equity advisory council be established, as provided for in section 45 of Bill 79, with the mandate and authority to respond to the needs of aboriginal people. This council will work to ensure that policies are implemented in every workplace to eliminate existing barriers and to address the following issues and concerns:
First, the aboriginal employment equity advisory council will work to assist aboriginal infrastructures, both existing and future, to have better access to financial and physical resources in order to provide education and training as required and to attract and retain aboriginal employees.
Second, appropriate training for potential aboriginal employees with the focus on sensitizing them to the general working culture must be undertaken, in addition to establishing a support system, focusing on retention for aboriginal employees.
Third, aboriginal awareness training for employers and all their employees must be implemented on an ongoing basis by recognized aboriginal trainers. Such training would be comprehensive, holistic and geared towards promoting harmonious and mutual respect among employers and their employees.
Fourth, employers must be sensitized in order to recognize accreditation from aboriginal training institutions or the equivalent in experience with aboriginal organizations. Such recognition should be further entrenched in job descriptions and required qualifications with salary levels comparable to similar training, education and experience.
Fifth, aboriginal people, in asserting self-government and their rightful place in society, must become educated and informed about employment rights and how to deal with violations. Encouragement will be provided to not only enter into the complaints processes, but follow through in an appropriate manner.
Sixth, all employers must establish appropriate policies and support systems for all their employees such as child care and educational leaves. As noted by the Ontario Native Women's Association in Ontario Native Women: A Perspective, single aboriginal mothers had 40% of all aboriginal families. Because of the lack of adequate or appropriate child care facilities, many aboriginal women are prevented from entering the workforce.
Seventh, there must be education of and recognition by employers of aboriginal, traditional and spiritual practices and these must be respected and accommodated in the workplace.
Finally, for aboriginal women who are required to move from their home community for reasons of employment or training, it means a loss of vital family and community support systems. A new support network, often among native organizations, has to be developed at the same time as she's adjusting to a new job or training program.
Existing native organizations such as the Ontario Native Women's Association, the Ontario Metis and Aboriginal Association and the Ontario Federation of Indian Friendship Centres require human and financial resources to provide aboriginal women with support services.
The Ontario Native Women's Association questions the purpose of Bill 79 as it does not serve the best interests of those it is intended to serve. This legislation will not improve the employment situation of aboriginal women in Ontario. Aboriginal women are not adequately represented in the workforce and are overrepresented in the lowest income bracket primarily due to a lack of access to appropriate education and training. Bill 79 does not provide for these needs.
Therefore, it is the recommendation of the Ontario Native Women's Association that the design, implementation and monitoring of employment equity legislation and programs, as they apply to aboriginal peoples, be controlled by aboriginal peoples in the form of an aboriginal employment equity advisory council as a legislative provision, as recognized by the government of Ontario in the Statement of Political Relationship and provided for in section 45 of Bill 79.
Mr Frank Miclash (Kenora): Susan, thank you for your presentation. I take it you're from Thunder Bay.
Ms Parsons: Yes.
Mr Miclash: Great place, northwestern Ontario. Susan, I think you've certainly brought your message forward and I must say that I support your suggestion that an advisory council be established, and this is something I think you've argued quite well.
I'd like to go to page 2 of your presentation. You indicate that "the consistently higher non-participation of aboriginal women is likely to be due to a lack of accessible education and trade skills, as well as a lack of training and employment opportunities." Susan, could you expand on that in terms of the need and maybe some suggestions as to the way you could see that need being fulfilled?
Ms Parsons: As it stands, aboriginal women do have equal opportunity to obtain employment in the province of Ontario when they have achieved a higher level of education and/or training. The problem is that this is not happening for aboriginal women who live in northern communities on isolated reserves. It also happens in urban centres when support systems are not established in order to help them maintain balance in a different culture. Many experience culture shock when having to travel from isolated communities to more urban centres for education.
The employment equity legislation, as it stands, cannot apply to the majority of aboriginal women in this province because they simply do not have the education and training to even apply for many of the jobs that we're talking about.
As I said, 57% of aboriginal women make less than $10,000 a year. Clearly the desire to work is there and the need to work is there. It's the advancement, it's the higher paying occupational groups that is the barrier for them, and the direct result is not overt discrimination; it's the lack of training that's not going to allow them to achieve that.
Mr Miclash: There are a number of programs that I'm aware of and that you're probably aware of as well in terms of the actual training. Are there any that your organization sees that are missing at the present time in terms of programs that will allow this to happen?
Ms Parsons: What types of educational programs are missing?
Mr Miclash: Yes, exactly.
Ms Parsons: Education on reserve needs to be improved that is more directly related to the needs of the people in that community and that can prepare them for further education. The training programs that are currently in place now do not adequately address their needs. Many of the training programs are just -- like carpentry and bookkeeping are the typical training programs that are always administered on reserves and for aboriginal people. That simply just does not address the need. They need to get into the education system so they can teach in their own communities. They need to get into the medical occupations so they can get back and work in the nursing stations and the clinics in their own communities. Bookkeeping and carpentry just aren't enough any more.
Mr Miclash: Just one step further on that. You talk about the establishment of a support system once the person is employed or in the workforce. Can you maybe expand on that? What would a support system, to you, look like?
Ms Parsons: A support system will often be comprised of a group where they can come and meet with other aboriginal people or aboriginal women and discuss problems that they're having in the workforce. It can be comprised of people who can assist them in dealing with any discrimination that they're facing in the workplace or in services, in housing. It can be comprised of people who can lend assistance in urban life skills. Many women apply for jobs in such regions as Toronto because that's where a lot of the jobs are now. They come down here and many have never had a bank account before because in the communities where they live, there's no bank. There's just a lot of things that many people take for granted that they don't realize don't happen in a lot of these communities. The support systems need to be there to help them in adjusting to the different culture, different language and different work environments that quite often end up being a detriment to their ability to succeed in the workplace.
Mr Tilson: Continuing along that same line, which is really point 2 of your issues and concerns on page 4 with respect to training and, further, the supporting of a support system -- and you've just adequately explained what you mean by that -- the question I have to you is, who is to provide the funding for that? Should that service be provided by an employer or should that service be provided by the provincial government?
Ms Parsons: Well, certainly that's not something that we've discussed in detail. There are a number of funding systems in place right now for aboriginal peoples in aboriginal communities. I am sure the aboriginal community could work together with the government of Ontario in establishing a funding system.
In addition, I believe that employers have a responsibility of educating and training their employees, not only training the aboriginal employees in order to advance them and develop their skills, but also to educate the other co-workers in terms of cultural awareness and to, I guess, respect traditional spiritual practices that are very important to aboriginal peoples.
Mr Tilson: I guess that's one of the concerns that has been coming out, particularly from employers' groups: the issue of costs. Many employers have continuing education with respect to the particular job that they have. The difficulty with this, the employment equity issue, whether you're talking aboriginals or whether you're talking visible minorities or any sorts of things, is those sorts of things that you're zeroing in on, particular areas, may have little or nothing to do with that particular business. If you're asking business to get into that line of training or support work, which is admirable, the question is, if the employer is to pay for that, should there be some sort of compensation by the government to that particular employer?
Ms Parsons: Well, I think as a result of the employment equity legislation and in the attempt to legislate employment equity in the workplace, if you're going to be increasing the percentages of aboriginal people in the workplace, certainly this sort of training is going to be necessary in order to promote a harmonious and workable workplace.
Mr Tilson: One of the criticisms that's been put forward in the media and which I'd like you to comment on is, what is an aboriginal? The regulations say an aboriginal person means a person who is a member of the Indian, Inuit or Metis peoples of Canada, and then there are other references in the actual bill to the aboriginal. The criticism, as you know, that's come out in the media at least is, when you're filling out the survey or the form, what is an aboriginal? In other words, if someone's great-great-grandfather was an aboriginal, is that person an aboriginal? In other words, one sixteenth or whatever percentage that you want to make simply to qualify, because people are desperate for jobs. Could you comment on that criticism?
Ms Parsons: First, what I'll say is the Ontario Native Women's Association is not prepared at this point to put forward a definition of "aboriginal person." I would like to say, though, with all due respect, that nobody likes to be defined. It's very disrespectful to have to be defined. I think it should be up to the aboriginal community as a whole to determine who is an aboriginal person. I think it should be self-determined. One of the issues, however, that you're going to face in forcing people to self-disclose who or what they are on a form is that it's going to create, I guess, feelings of inferiority. Many are not going to want to disclose this information for fear of reprisals.
Mr Tilson: I quite agree.
Ms Carter: Thank you for your presentation. You've certainly shown very clearly the extent of the problem as regards employment equity with regard to aboriginal women.
We wish we could have gone to Thunder Bay.
Mr Tilson: Here we go again.
Ms Carter: This committee had to make a decision --
Mr Gordon Mills (Durham East): It's true.
Mr Tilson: Same old line.
Ms Carter: -- whether to travel or not --
Mr Mills: It's true.
Ms Carter: -- but we were overruled on the subcommittee by the opposition members on that.
Mr Miclash: Susan, were you sponsored to come down here?
Ms Carter: You have recommended the creation of a separate aboriginal employment equity advisory council. Could you tell us whether this council would be working with the Employment Equity Commission or whether it would be something independent?
Ms Parsons: I would like to see the advisory council work with the current Employment Equity Commission to ensure that the needs of aboriginal peoples are addressed and that any resulting need for change or what have you is addressed by the aboriginal employment equity advisory council. I also might like to suggest at this time that this advisory council be comprised of an aboriginal person or persons with disabilities as well as several representatives from northern Ontario.
Ms Carter: One reason I ask that is that not all aboriginals are employed in aboriginal workplaces, obviously. There's a very large aboriginal population, for example, in Toronto who would be missed by what you might call separate arrangements. Thank you.
Ms Zanana L. Akande (St Andrew-St Patrick): Thank you very much. It was an excellent presentation and I support your point. One of the things I do want to clarify for this committee is that there has been extensive consultation or attempts to consult with the first nations community. The commissioner herself did travel to 10 aboriginal communities across the province and there was money provided for other groups to come and to consult. And you're quite right: The decision was that there would be a development of separate legislative provisions dealing with aboriginal workplaces.
Your brief has been extremely clear, but what would you see as being the format of employment equity that would specifically address the kinds of needs that you have expressed in the brief for the first nations community? Would you see it as being similar to what we have or totally different? I know that there will be some alterations.
Ms Parsons: Right. I think that's something the advisory council would have to examine. The aboriginal community and political leadership of Ontario have not had the opportunity to research and examine the proposed legislation in enough detail to put forth specific recommendations, which is why we would like to see an advisory council which can then be mandated to have the responsibility to go ahead and research those specific issues that you've raised.
The Chair: Ms Parsons, thank you for your submission and for participating in these hearings.
This committee is adjourned until 1:30 this afternoon.
The committee recessed from 1205 to 1338.
PUSH ONTARIO
The Acting Chair (Mrs Jenny Carter): I'd like to welcome Carol McGregor, Persons United for Self Help. You have half an hour for your presentation. If you could allow time for the members of the committee to put questions, that would be welcome.
Ms Carol McGregor: Thank you, Madam Chairman. I wonder, before I begin, if you might have the members of your committee go around the table and introduce themselves so that I know who is here today.
The Acting Chair: Okay, we'll start to your right with the third party.
Mr Jackson: My name is Cam Jackson, member for Burlington South, and I will be joined momentarily by Mr David Tilson.
Mr Miclash: Frank Miclash, the member for Kenora. Alvin Curling and Tim Murphy should be joining me at some time as well.
Mr Malkowski: This is my interpreter, Dean, up here, and then there's a lady at the front.
The Acting Chair: My name's Jenny Carter and I'm temporarily in the chair while Rosario Marchese is absent.
Mr Malkowski: The other people at the front should introduce themselves too so she knows who is in the room.
Ms Elaine Campbell: My name's Elaine Campbell. I'm with the legislative research service.
Clerk of the Committee (Ms Donna Bryce): Donna Bryce, clerk pro tem of the committee.
Ms Chantal Perron: I'm Chantal Perron, Hansard.
Mr Tony Giverin: I'm Tony Giverin. I'm the audio operator.
Mr Malkowski: I'm Gary Malkowski, NDP for York East.
The Acting Chair: Now we're on the government side.
Mr Fletcher: Derek Fletcher, MPP for Guelph, and beside me will be Zanana Akande, and Jenny, who's taking the chair right now, and Mr Anthony Perruzza will be coming to join us soon.
Mr Mills: Gordon Mills from Durham East, pleased to be here.
Mr Malkowski: We also have an interpreter sitting behind me, just so that you know who is in the room, so we have a full room for you.
Ms McGregor: Thank you. I appreciate that. My name is Carol McGregor. I'm the executive director of Persons United for Self Help in Ontario, more commonly known as PUSH Ontario. I'm the past coordinator of Disabled People for Employment Equity, the president of the Advocacy Resource Centre for the Handicapped and the vice-president of the Canadian Disabilities Rights Association.
Persons United for Self Help or, as I said, PUSH Ontario welcomes this opportunity to address the standing committee on the administration of justice on Bill 79, an act to provide employment equity in the province of Ontario.
PUSH Ontario, the Ontario affiliate to the Coalition of Provincial Organizations of the Handicapped, is the largest cross-disability organization run by and for people with disabilities. PUSH has six regional councils across the province, with a seventh currently being developed for first nations with disabilities. PUSH was established in 1981 and was chosen by consumers to be the voice of people with disabilities in Ontario.
PUSH Ontario is obviously pleased that the province has finally introduced an employment equity bill which acknowledges the systemic discrimination experienced by women, visible minorities, aboriginal people and people with disabilities in the labour force. However, the problem in analysing Bill 79 is the fact that the most important issues have been left to regulations.
PUSH Ontario is responding to this bill today solely from the perspective of its membership, people with all types of disabilities. We will be concentrating only on the following areas: the positive features of the bill; accommodation; enforcement; goals and timetables; and people with severe disabilities.
As the committee is aware, unemployment and underemployment for people with disabilities has been documented at 80% across the country. Training and employment remain the single most important issues for our membership. As a founding member of Disabled People for Employment Equity, PUSH and its regional councils have worked for many years to educate the public, employers and government about the systemic barriers facing disabled people in employment.
PUSH believes that the only effective way to ensure employment of people with disabilities is with a strong employment equity bill. Bill 79 is a step forward in that direction. However, if this bill is to be truly effective, it must be strengthened in specific areas. I want to look just perhaps at the positive features of the bill.
One of the more positive aspects of this bill is the recognition of the historic disadvantage experienced by members of the designated groups with regard to employment. Ontarians are finally openly debating the issue, and a dialogue is now in process. Ontario is the first province to introduce such legislation, and it is being observed with keen interest across the country. Disabled activists in provinces without any employment equity initiatives look to Ontario with envy. PUSH Ontario feels a strong obligation to ensure that the province implements a strong employment equity bill which will be a model for other provinces.
Specifically, the positive features of this bill are as follows:
(1) There is a symbolic recognition of the need for a systemic program to address discrimination in the workplace experienced by the target group members.
(2) The bill links equality aspirations of persons with disabilities and members of other target groups.
(3) There is a distinct possibility that employers will develop an enhanced awareness about barriers confronting persons with disabilities in the workplace.
(4) The bill will engage unions in assisting their current members who become disabled.
Our concerns about Bill 79, specifically on accommodation: One of the major barriers facing people with disabilities in the workplace continues to be the difficulty in accessing accommodation such as human support services, technical aids, work-hour flexibility, workstation modifications and physical access to the workplace. However, the bill dilutes the duty to accommodate which currently exists under the Ontario Human Rights Code. Under sections 12, 25 and 26 of Bill 79, an employer need only make "all reasonable efforts" to accommodate a person with a disability. This language represents a significant weakening of the standard developed under the Ontario Human Rights Code which requires employers to accommodate up to the point of "undue hardship."
Recently, similar "all reasonable efforts" language was vigorously opposed when the Department of Justice proposed such amendments to the federal Human Rights Code. National disability organizations recognized that "all reasonable efforts" to accommodate would result in no accommodation at all and only the most abled of our disabled would be employed in this country.
Moreover, under Bill 79, Ontario Human Rights Code standards are further diluted. No complaint can be filed against an employer for the failure of its accommodation plan to comply with the Human Rights Code with either the Human Rights Commission or the Employment Equity Tribunal.
PUSH must also vigorously oppose "all reasonable efforts" language, and calls on the government to incorporate the Ontario Human Rights Commission's accommodation guidelines into binding regulations.
Goals and timetables: Employment equity advocates have long argued that mandatory numerical goals and timetables must be included in an employment equity bill if the bill is to be effective. The results of the federal Employment Equity Act clearly demonstrate that the voluntary approach does not work. In the 1991 employment equity report, 18% of all employers covered under the act do not have one person with a disability on staff. Prior to the recession, the statistics show a continuing decline in the representation of people with disabilities in federally regulated companies.
People with disabilities have no reason to assume that the situation which exists on the federal level will be any different in this province. In Bill 79, employers will have the luxury of establishing their own goals with the expectation that they must represent "reasonable progress," but only if progress is "reasonably achievable." Under this interpretation, one could argue that the OPS could justify the 12% decrease in the representation of people with disabilities.
PUSH Ontario believes that the goals should be established by the commission, based on a formula that factors in a set of standard variables such as the economic climate, the resources of companies and the existing representation of designated groups.
The omission of timetables is of great concern to PUSH Ontario. Without a specific timetable to implement representation, progress will be extremely limited. We are starting to see the effects of the Americans with Disabilities Act, which incorporates timetables in their reforms. At a recent US employment fair, multinational companies as well as government agencies were recruiting people with disabilities. Ontario needs to move ahead at least as rapidly and see people with disabilities achieve equally successful employment gains.
I did bring with me today a copy -- agreed, it's not the best photocopy -- of an explanation of the contents of the Americans with Disabilities Act as it specifically relates to unemployment. I didn't photocopy 25 copies, but if the committee wishes to have this, it may wish to distribute it to the membership, because it does focus a lot on the accommodation issues for people in the United States.
Under the enforcement, PUSH Ontario is very concerned with the monitoring of employers under this bill. We will not have access to employment equity plans, reports or certificates. At least under the federal legislation you know what really matters on an annual basis, how many persons with disabilities are working for a particular employer and what is the rate of promotions and terminations. This is because federally regulated employers are required to and do submit their plans and programs to the government and the public scrutiny of organizations such as PUSH.
1350
As well, there is no mechanism in place for third-party intervention, which would allow complaints by organizations such as PUSH or DPEE. We know that some of the programs that have been put into place by the banks have been the result, direct result I might add, of the human rights complaint that was lodged by DPEE in 1988. Without public scrutiny, the onus will be entirely on the commission to monitor employers. We question that this will indeed be possible in light of current government cutbacks.
Persons with severe disabilities: As stated in our introduction, PUSH Ontario has members with all types of disabilities. Some of our members who have severe disabilities are concerned that this bill may not enable them to secure employment. They are aware of the attitudinal barriers that exist and the education that is still needed. However, as with all Ontarians, they wish to have the right to work.
Furthermore, the cost of maintaining an individual at home can exceed $13,000 per year. In Ontario, there are 1.6 million disabled people, of whom 15% are of working age. If none of these people work, it will cost the government $3.12 billion on an annual basis to keep them at home.
I've included at the back of this brief a fact sheet from the Neil Squire Foundation which highlights the cost of unemployment and indicates what the government would receive if a disabled person was integrated back into the workplace. The government needs to take a proactive role in finding creative ways to put people with severe disabilities to work.
In conclusion, PUSH Ontario was founded in 1981 and since that time has been lobbying for employment equity legislation. This bill in its present format will not see results for another 20 years. Our members urge the committee to strengthen this bill so that it is workable and so that it does help people with disabilities and gets them back to work. I would be happy to answer questions. I certainly listened with great interest to the debate on the merit and if you like I have some comments on it, but that's up to yourselves.
Mr Jackson: Thank you, Ms McGregor, for your presentation. If you have been watching and listening to these public hearings, you will know that people have been bandying around 10 years, and you've given us, for the first time, a figure of 20 years before it will have a substantive effect, I guess, is a more clear way of putting it. Underlying those two dates that have been quoted has been a consistent concern that the legislation, although it has target groups -- that the target group that may be least impacted by this legislation in its present form is the disabled community. Is that your assessment of the hearings to date? I know it's in your brief.
Ms McGregor: That's my assessment of the hearings to date.
Mr Jackson: The one point you make about third party, I was under the impression -- and perhaps, Mr Chairman, someone from the government can clarify that, or staff -- that there was provision for a third party to file a complaint or to advocate. Is there? Could we have that clarified for Ms McGregor, because --
Ms McGregor: Our legal counsel are from the Advocacy Resource Centre for the Handicapped and they've already analysed the bill and they have informed us, even out of the regulations, that there is not a mechanism for third-party intervention.
The Chair: Ms McGregor, we're going to have ministry staff comment on that.
Mr Bromm. Is the question clear?
Mr Scott Bromm: Yes. I'll just find the exact section. Under section 26 there will be access for third parties. It says, "Any person other than the commission may apply to the tribunal," on the grounds listed in that section, so it would apply to third parties.
Ms McGregor: It doesn't specifically outline, Mr Chairman, third-party intervention. It says, "a person," and in Ontario third-party intervention is not allowed to the Human Rights Commission. We can only do this on the federal level and we are still not quite convinced at this point in time that we will be allowed third-party intervention.
Mr Bromm: I can only state that the intention in this section is to allow for third-party complaints through that section, unlike the Human Rights Code which has to be either carried by an individual complainant or the commission itself. This section was meant to specifically address that issue.
Mr Jackson: The central question here is third-party intervention. If that's not in dispute, it's just clarity in the language to give assurance, is it possible to seek the assistance of the government legal counsel in drafting an amendment which essentially satisfies the requirements of PUSH and the disabled community generally? If the government intends that third parties do have standing, if that's the case, then this is not a matter of dispute, it's a matter of the clarity of the language.
My final question, Ms McGregor, would be, did your legal counsel from ARCH suggest a wording change or did he just give you the opinion?
Ms McGregor: David Baker will be here this afternoon, I believe, to testify, and you might ask him. He hasn't given us the exact legal language for that, but I'm sure he'd be delighted to.
Mr Jackson: Very good. Perhaps I'll leave it at that. I feel, if you're receiving that kind of legal advice, we should attempt to strengthen the bill with clearer language, if the intent isn't in question.
Ms McGregor: That would be appreciated.
Mr Malkowski: I'll be very brief. Carol McGregor, thank you very much for your presentation. It was wonderful.
I'm concerned about severe disability. I myself, as a person with a severe disability, as a completely deaf person, understand what a severe disability is and, from my own experience with friends, I understand what people go through. When groups come to present -- for example, we've heard from the Disabled Women's Network and Disabled People for Employment Equity -- the main recommendations that are coming forward and people are expressing, they'd like to see the definition of disability in the bill rather than in regulation.
I'm hearing from you that your concern is about severe disability. Would you suggest or would you be at all supportive of the inclusion of the definition of persons with severe disabilities to be seen in the bill as opposed to just being in the regulations, to make sure that persons with a severe disability then get that fair opportunity for employment? What are your thoughts on that? Would you support something like that?
Ms McGregor: I would be very supportive of that, Mr Malkowski. You may remember at the time I was with DPEE, we did launch a suit against the federal government for failing to implement its own Employment Equity Act based on the definition of disability. Our analysis of the data clearly indicated that several employers were not complying. They had altered the definition of disability. They had put out videos and were saying, "Are you disabled?" If you went to a doctor once a month, you had to declare that you were disabled. If you wore glasses, you had to be disabled. We spent a day in court arguing this. The master at the time said this was not in the public interest and threw it out. We were going to appeal it and the federal government notified all of the employers that they had to comply with the definition of disability as it was laid out in the federal act.
Our concern is that it's very easy to artificially inflate the numbers, particularly for people with disabilities. I understand the issue for self-identification and we argue in support of self-identification, but it's far worse to have people who do not actually -- I have a severe disability. I could not even get into the door for an interview because I have a seeing-eye dog. I have 18 years' education. I am a person, I believe, who has a fairly severe disability, when you don't see so well, but I need to be protected under this legislation and I need to be able to have some avenue. When the definition is changed and if it's not in the bill, if it's left in regulations, obviously that definition can be weakened, as we now see two employers who have gone to the federal court to try to change the federal definition in the courts.
1400
Mr Mills: Thank you, Carol. It's very interesting, your document here. Also, for the people who are watching, your dog that came with you is under the table. I'm glad he's here too.
I heard you briefly mention about merit. It's a theme that's run through everything that somehow -- and I'm not going to ask you a question about this, I'm just going to say that there's this thread that runs through that somehow, if you fit into this category, these categories, merit is an issue. Well, I don't see it as an issue at all but, unfortunately it keeps coming back -- merit, merit, merit.
Yesterday and all through the three weeks that this committee has sat, we've had people come here who've said we don't need this legislation: "We don't need it. Things are working fine."
Yesterday, we had a deputation from the Canadian Federation of Independent Business who said that this heavy-handed enforcement is decidedly unhelpful to those who genuinely want to build a fair and productive society in Ontario.
I know you represent a big group with a lot of people. To put some human aspects to what we're listening to here, I would like to hear from you some sort of cases where it applies to people in your organization where the door has been shut tight so they can't get jobs and they can't function in society. Can you share some of that with us?
Mr Jackson: It will take 20 years.
Mr Mills: We don't need that comment.
Ms McGregor: If I may, it's taken quite a severe effect on many of our membership. We have recently done a five-year study on the effects of substance -- alcohol and drug abuse for Health and Welfare Canada, and one of the major reasons behind this, we have found, is the fact that people are isolated, they are in their homes, they're in poverty and they do not live productive lives. We have seen this increase in drug addiction and alcohol abuse.
All of my staff in my office are disabled, some more severely with cerebral palsy. They've been institutionalized and have never had jobs and are very glad to work, but I have every other member wanting to work. Because they're making less than $10,000 a year on an average, they are in food banks by the middle of the month seeking help just to get through. This does not promote one's good health, this actually makes one's health deteriorate.
As I said to you earlier, I could not get an interview with a public sector employer after I lost my sight. I have 18 years education. I sent out numerous résumés and CVs; very interested in me; wanted me to come, but as soon as I had to ask for specific directions in how to find them, I was not suitable for that particular job, and that's sight unseen. If I left my dog at home, perhaps I would be more suitable.
This type of continual rejection is very demoralizing. We've had suicides in our community and it's had a very devastating effect. You lose your whole self-esteem, your whole self-image on how you even feel, and I did the same thing, as injured workers are finding as they try to reintegrate into the workforce, this type of rejection continually by the able-bodied community.
I thought, as an able-bodied person prior to being disabled, that I would get back into the workforce. The only place where I could get a job was within the disability rights movement. I don't regret the work I do. I regret that if I have all of these qualifications and my friends who are going to university have qualifications, what hope is there if we can't get in the door?
This legislation is absolutely essential if people with disabilities are to have an equal playing field. We are nowhere near where the other target groups are in terms of equality in this province or in this country.
Mr Curling: Thanks very much, Ms McGregor, for such an excellent presentation. You come on a day when we heard from people regarding having things in the regulation instead of having them in the legislation.
Earlier on today we had Judith Keene, a very reputable lawyer and someone who is quite versed in human rights issues, who spoke very eloquently on the fact and how important it is that we have things not only in regulation, but it should be really in legislation. One of the things about that too is about the democratic process, because your perspective of this in telling us what harm it could do if it's in regulation, how easily it can be changed without any sort of input -- as a matter of fact, this government seems to resist any kind of input from any commissioners or anyone who can make relevant contribution to this thing itself. So I just want to commend you for emphasizing that and hoping that they listen, that there are important factors in this that should be placed in legislation and not be left in the regulations.
I just want you to comment a bit more, because also Ms Keene emphasized the fact about trying to get a definition on "reasonable efforts" and where it dilutes really the intent of the legislation. Do you want to make any comment on that and see how much you think that will weaken the legislation?
Ms McGregor: As I said I think perhaps earlier in the presentation, Mr Curling, we really vigorously oppose this "reasonable efforts." If a commissioner was to come in and look at an audit and say, "Your representation rate is really down in people with disabilities," and they said, "Well, we did make this reasonable effort but it just didn't work out," under the bill that's quite sufficient. It's just reasonable progress and reasonable efforts and it doesn't follow under the code. It doesn't say up to the point of undue hardship that we had to accommodate that person. It's saying that somebody who needs an interpreter: "I don't want to have to pay that interpreter. I made all reasonable efforts, but nobody on my staff knows how to do sign language so I don't hire them."
Undue hardship up to the point of financial burden: Is it going to actually bankrupt that person to have an interpreter on staff? Is it going to bankrupt that person to provide me with a scanner so that I'm able to read printed documents?
The language of the code protects us a lot more than "reasonable efforts." I have vigorously opposed this with ministry staff. I think this is horrendous, this type of language in this type of bill. It's going to weaken our equality rights, from my perspective, and I could not in all good conscience support a bill that would weaken the equality rights further in this province, particularly in employment. We have such a long way to go.
Mr Curling: I wonder too if you could make some comment on this aspect of it. Most groups that come before us about disability issues with presentations concern themselves very much with not only that the employer must make that kind of effort to make employment equity work but the government itself and other outside forces, like in the sense of transportation. That had not been adequately addressed. Do you feel that the government itself has done enough in order to have the people who are disabled come forth to enter into the workforce?
Ms McGregor: No, I don't; I don't think any government that's been in power has. We have a generation of unemployed Ontarians right now for people with disabilities. As I said earlier, the document here that I have that is brought in from the Americans with Disabilities Act -- if the committee wishes, it can have a look at it -- has specific time frames. In the States, they've laid out under the Americans with Disabilities Act that within a certain period of time all buses must be accessible. We are seeing such a tremendous difference in the States, and it's taken a long time for the Americans. They very much were like us.
We need to develop a comprehensive bill that's going to ensure that transportation is accessible, because if you can't get to work -- and half the time transportation makes my staff late or makes it that they don't make it to work one day. They need parallel systems.
Vancouver can do it. Vancouver is an ideal city. I was there for an international congress on disability. There were 4,000 delegates in the city and everybody moved about freely. They had two parallel systems. The regular system people could take. They could access it with wheelchairs, the same as able-bodied people. The parallel systems were for people who required more support with attendants, because the bus driver couldn't get off. But clearly we need to look at what other countries are doing in the ways of making sure that their disabled citizens are having access to employment.
Germany, for example, only has 10% unemployment for people with disabilities. Clearly, we're not doing something right. We need either to look at what other countries are doing and strengthen this legislation or, for people maybe with severe disabilities, to look at alternative methods that are going to ensure that we have employment.
The Chair: Ms McGregor, thanks for your submission and for sharing your personal history with us.
1410
CANADIAN MENTAL HEALTH ASSOCIATION, ONTARIO DIVISION
The Chair: I call upon the Canadian Mental Health Association, Ontario division. Welcome. I believe you've seen much of the proceedings, so I would just ask you to get right to it.
Dr Michael Phillips: My name is Michael Phillips. I am a volunteer with the Canadian Mental Health Association, Ontario division, as well as the chairman of the racial and cultural subcommittee. I have with me today Carol Roup, who is the acting executive director of that organization.
The Canadian Mental Health Association, Ontario division, is pleased to have the opportunity to appear before the standing committee on the administration of justice. The Canadian Mental Health Association, Ontario division, is an incorporated, registered, non-profit, charitable organization chartered in 1952. We have over 4,000 volunteers who are active in direct board and committee service in a network of 36 branches located in communities across the province. Ontario division and the branch services and programs are funded through government grants, the United Way and supplementary funding activities.
The Canadian Mental Health Association has a long-standing commitment to employment equity. In 1982, our national office launched the mental health and workplace project to assist people with mental illness in obtaining and maintaining employment. In 1984, the CMHA published Work and Wellbeing: The Changing Realities of Employment, in which we affirm the relationship between appropriate employment and emotional wellbeing and identify the rights of individuals who have had an emotional or mental disability to return to work, the rehabilitative benefit of doing so and the need for public consensus to support employment implementation measures for the psychiatrically disabled.
In 1988, as a member of the provincial community mental health committee and member of the research group of this committee, the CMHA actively participated in the development of the Graham report, Building Community Support for People: A Plan for Mental Health in Ontario, which recommended that a range of vocational services and employment options be an integral part of a community-focused, comprehensive mental health plan for Ontario.
In March 1992, the Canadian Mental Health Association, Ontario division, was an active participant in the consultative process concerning the implementation of employment equity legislation in the province of Ontario. As a core member of the coalition Disabled Persons for Employment Equity, CMHA advocated for the recognition of the unique positions of people with psychiatric, mental or emotional disabilities in the workplace. Our submission in response to the discussion paper Working Towards Equality, released by the Employment Equity Commissioner in November 1991, was noted in the report on the employment equity consultations, Opening Doors.
The Canadian Mental Health Association, Ontario division, presently advocates for the unique needs of people with psychiatric, mental or emotional disabilities in the workplace on the minister's working group on persons with severe disabilities.
The Graham report of 1988 estimates that approximately 1.5 million people living in Ontario have some symptom of mental illness. The report notes that approximately 38,000 persons in Ontario have some degree of serious mental illness. The remainder experience various degrees of disability.
While concrete evidence of discrimination while employed is difficult to obtain, statistics consistently indicate that between 75% and 80% of persons with histories of psychiatric inpatient treatment are unemployed. People in Ontario whose primary diagnosis is that of a psychiatric disorder comprise one quarter of all recipients of family benefits allowance, or 29,180 recipients, the largest number of cases for all types of disabilities. It is therefore evident that the cost to the province and to individuals, in human and economic terms, of people with psychiatric disabilities is both exorbitant and unnecessary.
For the reasons we have cited above, the Canadian Mental Health Association, Ontario division, supports legislative measures that would assist people with psychiatric, mental or emotional disabilities in obtaining an equal opportunity to participate in the workplace. All too often in the course of the work of CMHA we receive testimonials from people with mental disabilities who encounter discrimination in the workplace and are not allowed a fair chance to contribute.
It is our hope that with the proclamation of mandatory employment equity legislation and the concomitant implementation of employment equity measures and job accommodation measures the systemic barriers that people with psychiatric, mental or emotional barriers now face will be lowered and the stigma that still surrounds mental illness will be dispelled.
Legislation alone though will not open all employment doors for the mentally ill. Education will also be needed, eduction that must change the social attitudes towards targeted groups, particularly the mentally ill. We will also require programs for training and retraining of the mentally ill and disabled in preparation for the workplace. In this regard, I would cite the work adjustment and employment support program of the Clarke Institute of Psychiatry and 15 such programs that are run by the CMHA branches across Ontario.
Ongoing financial support for this program and others is imperative in the context of this legislation if successful integration and reintegration of the mentally ill or disabled into the workplace is to occur. This would require a high level of understanding and accommodation on the part of employers of the needs of the mentally ill and disabled. This understanding can only be achieved through extensive public education, and it is only in this way that many of the myths of mental illness will be dispelled and, as a consequence, more human acceptance of the mentally ill and disabled in the workplace become a reality.
The legislation, in my opinion, will in part fulfil the requirements of new policies on mental health reform which put consumer-survivors at the centre of the mental health system. The document Putting People First by the Ministry of Health states that the people using the services will become the focus of the system, and the services will be designed, shaped and targeted to meet their needs. If programs are to respond to the needs of the people using them, consumer-survivors must be proactively sought out as employees, since they bring essential qualifications to their jobs that are otherwise not often recognized.
I will turn it over now to Carol to deal with specific areas in the legislation.
Ms Carol Roup: Given the short notice that we had to respond to this legislation, and we've had very little time to thoroughly review the regulations or consult with our board on many of them, we will not be commenting on all of the regulations.
We very much regret that several difficult and controversial aspects of Bill 79 will be enacted and amended by way of regulation passed in cabinet without an opportunity for essential public debate. We are therefore very pleased that the government will continue to meet with stakeholders, test the draft regulations and continue to seek comment. The success of this legislation is highly dependent on consensus and buy-in from the entire province, and clearly this is going to take time.
1420
The Canadian Mental Health Association holds that a serious shortcoming of Bill 79 is that it does not include a definition of disability. Leaving this definition of disability to the regulations, where it is more likely to be open to interpretation, is not as effective as incorporating it in the statute. We are aware that many other groups have put forward this issue.
I want to move quickly on to part III under the obligations and suggest there that the Canadian Mental Health Association holds that providing employees the right to choose to provide information about revealing their disability to an employer is a positive step. The issue of self-identification in the workplace is without a doubt one of the most complex issues that confronts people who experience mental, psychiatric and emotional disorders.
Unlike those who sustain disabilities that are visible, people with mental and emotional disabilities are often confronted with a dilemma. They are forced to choose between not revealing their disability and thereby avoiding the stigma that persists in accompanying mental disability, but forfeiting the benefits of employment equity; or disclosing their disability, bearing the brunt of stigma, but hopefully benefiting from employment equity legislation and perhaps helping others at the same time.
The CMHA believes that each individual has a right to choose whether or not to self-identify and therefore strongly supports the concept of voluntary self-identification included in Bill 79.
The Canadian Mental Health Association would also like to identify for the committee the measures that we wish to see incorporated in employment equity plans that would help make the workplace more equitable for those with mental, emotional and psychiatric disabilities.
Examples might be barrier-free advertising and interviewing and selection procedures designed to provide a more accurate assessment of an applicant's skills, and barrier-free employment evaluations could be implemented. Alternative, relevant work experiences such as volunteer work or qualifications other than formal education might be considered during the hiring process.
Training and education programs, which Dr Phillips has mentioned, to sensitize management and staff to the special needs of people with mental and emotional disabilities, as well as relevant training and developmental opportunities for people with mental illness, would help to create a more positive work environment. We believe strongly that a commitment to this act has to be demonstrated by a commitment to training and education on the part of the government. Employment programs which provide social and technical skills to people with mental disabilities need to receive an injection of funding support.
The research studies of the Royal Commission on Equality in Employment have confirmed that experiencing discrimination in the workplace is stressful for those who have no history of emotional and mental disability. Reducing occupational stress through job accommodation measures is effective in making the workplace more equitable. While these measures are especially important to people who are most often vulnerable to stress, they clearly benefit all employees. Some examples include buddy systems, flexible job designs, including flexible work hours and locations, and provision of job support such as employee assistance counselling, elder care and child care, parental leave, job-sharing and mentoring programs. Part-time and contract positions wherein an employee may elect to be included in an organization's benefit plan might also be considered.
The CMHA recommends the inclusion of consumers with mental, emotional and psychiatric disabilities on the Employment Equity Commission. We also recommend that the commission's mandate include conducting research on the hiring, promoting and retention of people with emotional, psychiatric or mental disabilities.
At this time we thank the standing committee for providing the Canadian Mental Health Association an opportunity to participate in these public hearings and to express its concerns respecting people with mental disabilities in the workplace. It is our sincere hope that Bill 79 will ensure that the workplace becomes more equitable. Thank you.
Ms Carter: I'll keep it short because I think some of my colleagues have questions. First of all, I'd like to congratulate the CMHA on the excellent work that you do and I certainly am aware of it in my own community of Peterborough. In particular, psychiatric survivors have told me of the kind of problems that they meet because of the prejudice, if you like, that knowledge of their disability arouses in other people, and that's certainly something that we have to fight.
You have spoken very strongly in support of voluntary self-identification. Some presenters, particularly employers, have told us that this will be a problem, because they won't get accurate data on which to base their plans. Can you comment on that?
Ms Roup: I think that this is probably the single biggest issue for the people we serve. As I indicated, it's a bit of a catch-22: You either are voluntarily identified and then you accept the possible penalties that come with that; however, having done that, you can benefit from legislation like this. On the other hand, if you keep it a secret and you don't do anything about it, you cannot exert your rights under legislation like this, but I guess, in some respects, you're protected against discrimination if you can keep it hidden.
I think more and more our consumers feel that they would want that choice and they would want to preserve that as a right to choose whether to disclose or not. So we really do support voluntary disclosure, because it's hard for anyone else to make that decision for somebody, I think.
Ms Akande: Yes. It's interesting that you mention that the reduction of stress can of course be a benefit to all employees, and yet we know that in these times and especially, I would imagine, when we introduce full employment equity, competition will be even a greater reality within the workplace. How would you recommend, suggest, that this reduction be effective?
Dr Michael Phillips: Earlier we referred to some of the programs that are currently in place. Again, I get back specifically to the work adjustment program at the Clarke Institute. This is a program that not only prepares mentally ill individuals for entry into the workplace but continues to provide the needed psychiatric support for them, the counselling for both the individuals and the employer, because the employer would also be under some stress in the relationship with these individuals. I think it's important that programs such as these be enhanced in order to minimize the stress that the individuals would face.
Mr Murphy: Thank you very much for your presentation. I very much appreciated it. It's very timely. At lunch I was at a thing for an organization called On Our Own, which is a group of consumer survivors who run a drop-in for themselves. In fact, we we're talking about the issues of employment and how difficult it was and the discrimination they were facing.
The one issue I want to talk to you about is the definition of disability. You refer to it in your brief. There are two aspects to it. I certainly agree it should be moved into the legislation. I was wondering in particular what the wording changes were that you would like to see.
The second part is also the definition, related to the idea of identification through being disadvantaged in an employment situation as being part of the identification process, because I know of some of the experience under the federal act. There was an employer who had five employees who were medically blind, were accommodated with voice recognition machines, and then in the next survey, three of those employees no longer identified themselves as disabled for the purposes of the survey because part of it was identifying yourself as disadvantaged in the workplace, and because they were accommodated, they didn't feel they were disadvantaged.
So I'm wondering if you could comment, then, on the two aspects of the definition: One is what wording you were looking for -- and I know you've recommended the replacement of the word "psychiatric" with "emotional" -- and also the question of the disadvantaged concept.
Ms Roup: Maybe I could start and I'm sure Michael has a lot to add. Yes, we would like the definition to be in the act as opposed to the regulations. I think that's clear. We would like it to be a comprehensive definition. We cited in our paper two examples of lengthier definitions.
1430
We've had a lot of debate about the issue of a functional definition. The reason why we haven't raised that again today is that I think our board want to review that a great deal. There seems to be some consensus within our organization that a functional definition that looked at limitations might be helpful.
On the other hand, I think we feel that there are some risks with putting, right into the legislation, a list of limitations. I know that a number of consumer groups are supporting that and I think there's good reason to support that. But at this time, I don't think we have a fixed position, because we do see some risks somewhere down the road. If you list limitations and you leave it to someone to prove their limitations, as it were, and then perhaps the next step is that someone else assesses them for their limitations, the sound of that to some is really not very attractive.
So I couldn't really give you additional words except to say that there are a number of people in our organization who favour a limitations definition, somewhat like the Health and Activity Limitation Survey. I guess it --
Mr Murphy: The disadvantaged point: The question of disadvantage being part of the self-identification definition.
Ms Roup: I'm not too sure that I was clear on that question, on that second part.
Mr Murphy: The definition in the regulation as it stands now says the permanent impairment, I think is the language, and then it says "and disadvantaged" -- you view yourself as disadvantaged in employment. I gave the example of the effect of that definition on self-identification in federal surveys. I'm wondering what your views on that aspect of the definition are.
Dr Michael Phillips: One concern that I have with definition, period, as it relates to the mentally ill, has more to do with the episodic nature of the illness, where at one point where the illness is in remission, you may function fairly reasonably well and, at other times, with the encroaching of the onset of the illness one can certainly fall apart. That would certainly present problems not only for employers but from a definition point of view, in my opinion.
Mr Jackson: Thank you for your presentation. I guess I'm having difficulty with a couple of aspects of it and will probably risk raising some difficult issues here. But it strikes me that in the definition of "disability," the group which you represent, you have one of the largest single challenges of classification and there are some additional problems here.
Perhaps with a minor working knowledge of the Weisstub report and the Graham report, I want to introduce the concept of the Human Rights Code aspects of disclosure and privacy. In other words, if you -- and I'm sorry for raising issues like this -- are a paedophile, for example, this is a mental illness, clearly. A person has a right not to tell the world that they're a paedophile.
But on the same token, if this legislation is to work, they have to go in, according to your thesis, to an employer and say, "I'm a paedophile; therefore, I'm a member of the target group and you should hire me." Then it begs the question of if that employer is a day care centre. I'm sorry for raising it in such graphic terms, but when I was quite young I remember in Port Credit an entire Esso holding area of gasoline went up in flames. About a week later it came out in the newspaper that this was a discharged person who'd served time for the mental illness of wanting to light fires; I forget that condition.
So I'm having real trouble with this because I can't work it out in my own mind as to how this -- and it's not your fault. We, as legislators, have failed to come up with a proper definition of competency. We still haven't done that after at least the nine years that I've been in this building, in this Legislature, we've been struggling with it.
Could I invite you to get into this very delicate issue of a person's right to privacy in the mental health issues that affect them and their requirement to literally broadcast it as a means of getting a door open? This is a very delicate, doublesided coin. Could you help the committee to get into this area? Unfortunately your brief didn't get into it, and for me this is new territory that I'm struggling with as a legislator. I accept all the points you've raised, but you have asked to have a clearer definition for the clients you advocate for.
Ms Roup: I guess in the first place, in these kinds of legislation, to me there's always the decision about whether you deny rights to absolutely everyone to protect a few isolated cases or whether you broaden the rights as extensively as you can, and yes, there are going to be some tricky exceptions. I think in many pieces of legislation that involve rights and entitlements, this is inevitably going to be the case. Legislation never addresses every last citizen in the province, so there has to be a balance somewhere along the line. To what extent will you curtail rights in the interests of very few exceptions?
I guess this legislation is broadly giving rights to as many people as possible and it's giving them an opportunity to voluntarily disclose. However, I think in exceptional circumstances, some workplaces will require specific skills. Certain obvious skills are going to be necessary for certain jobs. For people who work in day care centres, I can't see anything wrong with a set of skills that are absolutely essential and an employer hiring for those skills.
When any one of us is interviewed, we're not forced to say anything we don't wish to say. We all withhold information that we think may be detrimental. So I don't see how you can force anybody.
Of course if a person has a conviction of paedophilia and they're being interviewed for a job in a day care centre, I think day care centres have a right to be sure that they're getting people with the right skills. I think these are very exceptional cases that create some fear and I think they can be got around. But I still would say that it's voluntary disclosure. I don't know if you want to add to that.
Dr Michael Phillips: Just to respond to your example, your paedophile may be an excellent carpenter and that should not preclude him from working in that area.
Mr Jackson: Yes, I raised a double-edged sword on this one, and I apologize.
The Chair: Mr Jackson, sorry, we are out of time.
Mr Jackson: I wanted to get into this area, because it's a separate issue from competence, and that is another issue we didn't get into, unfortunately.
The Chair: We don't have any more time. I want to thank you for your submission and your participation today in these hearings.
ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED
The Chair: We'll move on with the next presenter, ARCH, Mr David Baker. Our 2:30 appointment isn't here and you are.
Mr David Baker: I'm happy to go ahead.
The Chair: Good. Welcome to this committee. You have half an hour for your presentation and we urge all the deputants to leave as much time as possible for questions.
Mr Baker: Thank you, Mr Chair. I apologize for not getting the brief to you sooner. What I propose doing is highlighting points covered in the brief and then, as you say, leave as much time as possible for questions. I've been advised by other persons within the disabled community that some technical or legal issues have been raised with them which have been asked to be deferred to my appearance, so perhaps I should make a special effort to be brief. I'd like to thank the committee for the opportunity of being here to present.
1440
ARCH has done a number of surveys over the years of what issues are considered to be the priority issues for persons with disabilities -- and I'll remind you there are 1.6 million persons with disabilities in this province -- and for several years, and most notably over the last year or two, we have found that employment is by far the most important issue with persons with disabilities. It is rated twice as high as the next most important issue. So if people are concerned about what is it that disabled people are thinking about or what is it that disabled people are trying to accomplish, employment is clearly at the top of the list.
The second point I would like to make is that the structure which the government has adopted, namely, a structure which relates employment opportunities for persons with disabilities to numerical goals, is by no means unique in the area of disability. I point out that five of the seven members of the G-7 nations have numerical-based employment programs for persons with disabilities. They are Germany, France, Japan, the United Kingdom and Italy. So from the standpoint of persons with disabilities, this is by no means a ground-breaking exercise, if I may put it that way. In fact it is, from the perspective of the community, once again, a long-overdue effort to redress the position of disabled people within the community.
I should add that the sixth member of the G-7, the United States of America, introduced extremely strong legislation in 1990 called the Americans with Disabilities Act, and if you read the New York Times business section, you will see virtually daily there are reports about the major impact which this legislation is having and how American business is responding to this by enhancing employment opportunities for disabled people.
The point here is that of the G-7, Canada, and I would say in particular Ontario, is the one country which has not made a significant effort to enhance employment opportunities for persons with disabilities, and as a result, we should not be surprised that we have more unemployed disabled people and more people who are dependent upon an already overextended social safety net. So I would appeal to people to consider the cost to the public as a whole of not having to this point in time introduced strong employment equity legislation for persons with disabilities.
In relation to the attitudes of disabled people, I don't think there should be any doubt but that there is a strong willingness and desire on the part of disabled people to work. Any discussion of any other motivations I think is misguided and I think I would quarrel with anyone who would suggest that the employment position of disadvantagement experienced by disabled people has been as a result of any lack of willingness to work. To the contrary, disabled people are in large numbers, to the extent they are in the workforce, underemployed.
Many disabled people are working despite the fact that it is contrary to their economic interests to be doing so, and I have appended a letter to the editor from one of your earlier witnesses, Carol McGregor, who happens to be the president of ARCH, to the Toronto Star in which she takes exception to a decision by an individual to leave a substantial job in order to go on social assistance. Social assistance is there for disabled people who need it, and I don't think there should be any suggestion but that they do need it. I think we also have to look at criticism of the cost of workers' compensation and auto insurance and relate those costs to the failure of our employment programs for persons with disabilities.
The fourth point, effectiveness: There is an issue in relation to disability which is somewhat -- I won't say exclusively unique to disabled persons, but I think it is sufficiently important that it should be raised, and that is that disabilities occur on a spectrum. There are people whose disability only mildly affects their ability to participate on an equal basis within the workforce. I use the example of someone with epilepsy, where the stigma associated with epilepsy can result in decisions by employers based on prejudicial attitudes.
There are people with moderate disabilities who face physical barriers, such as inaccessible buildings or the need for a sign interpreter, who require an accommodation. This group looks to employment equity for assistance, because of course there are qualitative as well as quantitative measures to be applied under the employment equity legislation. This group should, if the legislation is changed in certain respects, benefit substantially from those changes.
The final group is composed of persons with severe disabilities. This is the group which the five G-7 countries have attempted to address and have successfully addressed in relation to employment. I was at a meeting this morning where the representative of the Thalidomide Victims Association of Canada was speaking, and he indicated that while people who are victims of thalidomide have severe problems in finding employment here in Ontario, in his experience and to his knowledge, in Germany all the victims of thalidomide in that country who are seeking employment have been successful in finding employment. I think that's a statement on the degree to which programs of employment for severely disabled people can be effective.
None the less, I want to point out that the government has appointed a committee to examine the needs of persons with severe disabilities whose needs are not going to be addressed under this legislation. I believe the government should be congratulated for this, but I think it should be stated on the record that that committee will not be reporting until after this committee completes its work and therefore many of the concerns that relate to persons with severe disabilities will not be addressed in this legislation. I would hope the committee could express the view that those needs of persons with severe disabilities can be brought forward in due course.
The next point I'd like to touch on briefly is the performance of employment equity legislation where there are not mandatory goals and timetables. Under the federal Employment Equity Act, which has been in effect for more than six years and with which ARCH is very familiar, there have been examples of employers who have improved their statistical reporting of employment of disabled persons. However, when those numbers are examined, it is found that the employers have changed by broadening the definitions of who they include as being disabled persons, and in many cases the evidence is that they have terminated more people with disabilities than they have in fact hired.
Having said that, having said that the numbers are in some respects inflated and it's very difficult to assess, overall, even based on the numbers presented by employers themselves, there has been no significant gain registered by persons with disabilities under the federal Employment Equity Act, and that is attributable in large measure to the lack of an enforcement mechanism based on goals and timetables.
I'd like to turn to the performance of the Ontario public service, because obviously one would not question the good intentions of the Ontario public service, but I think the facts speak for themselves. Based on the most recent annual report put out by Management Board, between June 1991 and May 1992 there has been a 12% decrease in the representation rate of persons with disabilities within the Ontario public service. We are informed that this negative trend has, if anything, accelerated since May 1992.
Obviously our concern would be that while there are qualitative measures in the OPS plan and while the intentions are obviously good and while other designated groups have at least remained static or have improved their circumstances, when it comes to persons with disabilities, unless there are significant quantitative measures, or goals and timetables, if you like, which are enforceable, even the Ontario government can move backwards rather than forwards.
I would urge that all parties consider that if effectiveness is an issue, and I hope it is, we learn something from the lessons of the federal Employment Equity Act and the OPS employment equity experience.
If I may, I'd like to turn to specific recommendations. The first one concerns the issue of severe disability. I've mentioned to you that the committee will not be reporting until November 1, which means that this committee will not have the benefit of the government's advisory committee on this issue's report. I regret that. I would ask that this committee affirm the mandate of that committee; that is say that as a province, we are committed to providing a group of people which has been denied any employment opportunity some reasonable prospect of being independently self-sufficient through real jobs or real employment.
1450
The government could have done this. This would have required fairly detailed amendments to section 5. I believe Disabled People for Employment Equity have asked that those amendments be made, but at this point there is no specific consensus that I'm aware of on how that would be achieved, and therefore it's obviously problematic for you as a committee to attempt to redress the issue. I would suggest, then, that the best we can do is to urge the government to introduce affirmative hiring legislation for persons with severe disabilities at the earliest possible date.
Secondly, with regard to the duty to accommodate, it was not very long ago that members of all three parties in this Legislature voted unanimously to impose a duty to accommodate for persons with disabilities -- among others of course -- in the Ontario Human Rights Code. Draft regulations which have been provided by the government under Bill 79 make it clear that an employment equity plan must include measures to accommodate persons with disabilities in accordance with the Human Rights Code. One would then assume that the plan is to be consistent with the Human Rights Code. However, the obligation under Bill 79 which is placed upon an employer is not to implement the plan, but is in fact to make all reasonable efforts to implement the plan. That is the duty set out in section 12, and there is another section dealing with enforcement which mirrors that section.
The net result of this is that the duty to accommodate disabled persons, which many people regard as absolutely critical to enhancing in any way the employment opportunities for persons who require those accommodations, will in fact be lessened or diluted by the passage of this bill as it currently stands. The Employment Equity Commissioner received a study from Professor Bill Black, who was at the time the director of the Human Rights Research and Education Centre at the University of Ottawa. He pointed out that this was in fact a problem and made recommendations to address it.
I would suggest that the proper way to address this issue is to state that the duty of the employer to make all reasonable efforts would assume that this would include the duty to accommodate as set out in the Human Rights Code. In this way, decisions by the commission, by the tribunal and by boards of inquiry under the Ontario Human Rights Code would be consistent.
I don't understand it to be the government's policy, nor the policy of any other party for that matter, to reduce the obligations of employers to accommodate disabled people. I believe, and Professor Black recommends this as well, that there should be straightforward mechanisms for incorporating the obligations under the Human Rights Code. Indeed, who would say that it would be in fact reasonable for an employer to discriminate or to fail to accommodate as is required currently under the Human Rights Code?
With regard to the issue of mandatory goals, as I believe everyone is aware, the government promised that this legislation would represent the imposition of mandatory goals upon employers. The draft regulations, based on my analysis of them, do not keep this promise. The minister appointed a regulations working group, of which I was a member, which agreed unanimously to the imposition of mandatory goals. The government has chosen to reject the advice of its own advisory committee, which I consider most unfortunate. Without mandatory goals, the experience of persons within the Ontario public service could well be duplicated. The representation of persons with disabilities in employment is as likely to worsen as it is to improve, in my estimation, unless this essential guarantee is contained in the legislation itself. Employers should be required to set goals based on data provided by the commission. Terminations of persons with disabilities should result in replacements, where opportunities exist, so that at the very least we are not moving backwards. Employers should be required to set goals in excess of availability rates when a target group is seriously underrepresented. For example, a representation rate of less than 75% of the availability figures provided by the commission should result in an obligation on employers to hire at a rate in excess of the availability of disabled persons in the community. This is not an unconscionable thing to be asking because there are such high numbers of disabled people out there to be drawn upon and availability assumes qualification to perform the jobs involved.
When under the Action travail case, CNR was found to have been violating the human rights of women, the Supreme Court of Canada imposed a rate of basically two times availability on CNR until such time as a critical mass of representation had been reached. This is what one would assume if we are to achieve the goals of employment equity within the lifetime of persons with disabilities who are alive today. I would suggest that subsection 50(2) of the bill should be amended to require that these kinds of goals be established.
I would emphasize that these goals are not quotas. Under the current bill, no employer is obligated to hire an unqualified individual. And I would respond, if I could, to Mr Jackson's question to the previous witness in saying that clearly someone with the record he suggests, where there is a real risk of recidivism, would not be a qualified individual.
As well, employers are not obligated to meet their goals; they need only make all reasonable efforts to do so. In other words, goals are not mandatory in the sense that no reasonable explanation need be provided to justify. The issue of goals being quotas, therefore, under this legislation is not, in my submission, a question.
In relation to the question of enforcement, information under this bill will be extremely hard to come by. Employers will not be obliged to provide to the commission plans or reports; they need only file certificates. This is information which is available under the federal Employment Equity Act, at least in relation to the statistical data, which is what the Employment Equity Act federally focuses on. That material is available in public libraries across the country. Not so under Bill 79.
The bill, in my submission, should expressly provide in section 16 that the documents referred to above -- plans, reports and certificates -- should be available on request by the commission. As the legislation is worded, the plan would only be available to the commission if an audit is conducted. The question of when audits will be conducted will, I think, be subject to some litigation. There will be expense involved in conducting an audit. The commission will be under constraints and obligations.
But I would go further than the commission. Why should the public not have access to these fundamental documents of the employer which indicate compliance with that legislation? Under the bill as it stands, no complaint can be filed with the tribunal concerning the numerical goals which the employer has chosen. Only the commission can question an employer's goals. Subsection 26(1) of the bill should provide that anyone can complain to the tribunal if the employer does not establish goals based on data provided by the commission. This is the advice the government was given by its own advisory committee, and I would suggest to you that it should be reflected in section 26 of the bill and not left to regulation.
On the issue of consultation or the involvement of members of target groups, section 15 of the bill says that there should be some form of consultation. I would suggest that the bill be amended to require that in a unionized workplace, the union be given responsibility for selecting target group representatives to consult on the development of the employment equity plan. In non-unionized workplaces, employers larger than those referred to in subsections 19(2) and 19(3) should be required to conduct elections for target group representatives with whom they would be required to consult. The election process could be dealt with in the degree of detail necessary under the regulations.
1500
The disabled persons representative is well known in Europe, is elected by his or her peers, and plays an important role in the process of barrier removal. There is no cost involved in this. I would point out that as a resource to the employment equity process, having these representatives, who could be provided with public education materials and who could be offered training, as is done in many European countries, would be a very useful addition to the role of the employer and the union in the development of the barrier removal process.
The disabled persons representative, if it is done arbitrarily, can be a problem, the problem being that a person who may have a particular disability may not have any special knowledge or expertise to offer in relation to other disabilities. That's why the opportunity for training and the opportunity for providing background educational materials would be important in terms of the contribution these individuals could make to the development of the plans.
The Chair: Mr Baker, there are five minutes left, which would allow one question per caucus member, or you might wish to take the time and complete your submission in that way.
Mr Baker: I'm sorry I've let time run on. My final point relates to the relationship between the Employment Equity Act and the Human Rights Code. At the bottom of page 8, I point out that if an individual with a disability feels he or she has been discriminated against by an employer, the new process as set out in the current legislation would require that a complaint be filed with the Human Rights Commission, a review be conducted by the Human Rights Commission, and a decision to refer be made by the Human Rights Commission. The complaint would then be received by the Employment Equity Commission, which would then conduct an investigation and would issue a direction. That direction could be appealed by the employer to a tribunal, where a full hearing would be conducted. Only after that hearing reaches a decision would the matter be referred back to the Human Rights Commission, where the individual would have to cooperate with an investigation. The Human Rights Commission would then make a decision as to whether or not to appoint a board of inquiry, where again a full process would have to be followed.
I would suggest to you that it's unconscionable in a province where our Human Rights Commission now is functioning -- I have a client whose case has been with the commission nine years. We're talking decades here to get through that kind of a process. I would suggest to you simply that what needs to happen is that there be consistent legal standards between the Human Rights Code and the Employment Equity Act, that the issues that relate to systemic questions covered under the plan go to the commission, that individual remedies be provided by the Human Rights Commission, and that where issues raise both, that it is possible to file two complaints and have both matters heard by the same body so that we could have a process that made some sense. I know others have made that point to you, but I'm not sure they've gone through the absurdity of the current process.
Having used up virtually all of my time, could I ask if there are any questions?
The Chair: Mr Baker, I'm not going to that; if we do we'll run way over time. I would just ask whether you had concluding remarks you want to make.
Mr Malkowski: Can I ask a question?
The Chair: I'm sorry, Mr Malkowski. No, if we do that, we'll have to ask every caucus to pose a question as well, and that would take us over time. I would rather he make some concluding remarks.
Mr Malkowski: Could we ask for consent among the members?
The Chair: Do members want to ask one question each?
Mr Peruzza: No, I don't agree to unanimous consent and I'll tell you why I don't agree: because each and every presenter who's appeared before this committee has had exactly the same opportunity and we haven't done it. I've wanted to ask questions of several people and time ran out and that was not permitted. In fairness to them and in fairness to other people who have appeared before the committee, I don't agree to give you unanimous consent, and I think it's unfair for the member on our side to ask for that because he knows the rules as well as the rest of us.
The Chair: There's no unanimous consent, so if you want to conclude with some remarks, do so.
Mr Baker: I would simply say that my concern is that Bill 79 may well address the needs of people with mild disabilities, but it will not address the needs of persons with moderate and severe disabilities. I think we should be concerned about them and we should be concerned not only about the human cost to them as individuals, but the social costs and the economic costs of denying them employment opportunities.
We're also concerned that part I guarantees under the Human Rights Code are lost as a result of the legislation as it's currently drafted. I really don't believe that was the government's intention and I hope there is the opportunity to change it.
Finally, I would say that the target group members are excluded from this process. There is a clear and understandable role provided to unions. Employers obviously are involved. The people who are excluded under this process are the target group members, and I think that will, in the long term, mean that employment equity will be diminished. We need to find ways of enhancing the role of target group members, and I have suggested that the provision of information to them and the involvement of them in consultation is the way to go about doing that.
The Chair: Thank you, Mr Baker. We found it very informative. Unfortunately, we just didn't have enough time for questions. We appreciate your taking the time to participate in these hearings.
LABOUR COUNCIL OF METROPOLITAN TORONTO AND YORK REGION
The Chair: Labour Council of Metropolitan Toronto and York Region, welcome, Ms Hall. You have a half an hour for your submission. Please leave as much time as possible for questions.
Ms Shannon Hall: I'm Shannon Hall. I'm the treasurer of the Labour Council of Metropolitan Toronto and York Region. We're pleased to have the opportunity to present our position on Bill 79, An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women.
The Labour Council of Metropolitan Toronto and York Region represents approximately 180,000 trade unionists in this region. Our members are from more than 400 different local unions and work in a broad range of industries and sectors. Within our membership we have large numbers of workers of colour, women, and as well we have aboriginal workers and disabled workers.
Employment equity legislation is long overdue in the province of Ontario. It represents a recognition that tremendous inequality exists in the workplace and in society in general.
It is important to recognize the profound effect discrimination has had in our workplaces. Power in our society is based on the exploitation of working people. This system has been and is today bolstered by discrimination against and distrust between groups of working people. These divisions have, for the most part, benefited our employers.
We should also recognize that systemic discrimination runs deep, encompassing hundreds of thousands of intentional and unintentional acts over time. Therefore, without intentional action, it will not be stopped. Employment equity is a systematic solution to systemic discrimination. For these reasons, we support the principle of employment equity.
Our support for employment equity not only reflects our support and solidarity for our sisters and brothers who are victims of discrimination but also reflects our self-interest as workers, for only in our unity are we strong. Racism and discrimination benefit our bosses and weaken us as workers. In supporting employment equity, we reaffirm that an injury to one is an injury to all.
The labour council has been involved in the fight for equality in employment for several years. In particular, since the early 1980s, our efforts have focused on anti-racist education for our members and programs to assist immigrant workers and workers of colour to fight for their rights in the workplace and for effective representation within their unions. Much of this effort has been through the equality project at our Metro labour education centre.
As well, our education centre was set up with the mandate of serving the needs of some of the most exploited groups in our workplace, namely, immigrant women and workers of colour. Our programs, whether literacy and second-language classes in the workplace or labour adjustment programs for laid-off workers, have reflected this mandate since their inception.
Finally, our women's committee launched an equality project in 1988 to assist women unionists to develop equality in their workplace and their union.
With regard to employment equity legislation, we have supported the Ontario Federation of Labour's efforts to achieve mandatory legislation over the past several years.
Although we support the principles of employment equity, our support for Bill 79 is conditional. The bill has to be strengthened to make it truly mandatory. Otherwise, it will not bring forth true equality in the workplace. It is not enough for employers to say they made reasonable efforts, as in section 12 of the act, to hire target group members but were unable to find qualified people. Consideration must be given to the ways jobs are advertised and the methods of recruiting. Minorities are often ignored and excluded in the process.
Often many of the qualifications listed are unnecessary. For example, hospitals are requiring grade 12 education for housekeepers. Duties for this position include dusting, cleaning floors and making beds. Experience may be more helpful than high school education. Many entry-level jobs require grade 10 or grade 12 education when reading and writing are not needed to do the job. This systematically leaves out many target group members who could otherwise do these jobs.
1510
The proposed Employment Equity Act provides an outline for the legislative scheme while leaving most details and many essential elements of implementation to the regulations. The regulations provide all the details for the employment equity process: the contents of the employment equity plan, the requirements for posting and reporting to the commission and the time lines for all of the above. The usual function of regulation is to provide clarification of substantive sections of an act. The opposite is true with Bill 79. The act must be a coherent, integrated whole. It must not just provide a framework for the regulations. Regulations can be changed too quickly and too quietly. If the legislation is to result in long-term benefits for workers, the essential requirements must be found in the act itself, not only in the regulations.
Bill 79 should be a true mandatory employment equity legislation. The proposed legislation and regulations fail to specify standards that employers must comply with. It lacks effective reporting and filing mechanisms. It is not mandatory because the enforcement body, the Employment Equity Commission, does not have the necessary tools and power to monitor and enforce. The legislation should clearly stipulate the powers of the commission to monitor employers programs and conduct workplace audits.
The legislation fails to provide a mechanism to clearly identify whether employers set strong and effective goals and timetables. The Employment Equity Commission should develop standards for goals and timetables on an ongoing basis for employers so that it is clearly measurable whether employers set up goals and timetables accurately and achieve the goals effectively.
The role of the Employment Equity Commission to conduct ongoing, broad-based public education should be clearly spelled out under the relevant sections of the act. Consultations with the workers in our education centre's various programs reveal that the most vulnerable groups in the workforce -- workers with English as a second language, women, immigrants, workers of colour -- are the ones excluded from education on employment equity. The legislation should impact on their employment and promotion opportunities the most greatly among all the workers. Providing education on employment equity to all workers should be an integral part of the employers' obligation.
Limit the exemptions for employers in the broader public sector and private sector. The definition of "employer" in the legislation excludes workers whose employer has divided its whole enterprise into a number of workplaces too small to be covered by the act. This loophole may even encourage some employers to subdivide their operations.
Community advocacy groups should be able to file a complaint and this should be incorporated in the act.
Mandatory employment equity committees should be established in workplaces to ensure inclusion of non-unionized workers in the employment equity planning and implementation process. The bill does not clarify who will represent non-unionized workers. We do not want to repeat the mistakes made with pay equity, where the employer appointed the representatives of non-union workers.
On the areas of concern other than the ones mentioned here, we endorse the positions of the Ontario Federation of Labour, the Alliance for Employment Equity and the Women's Coalition for Employment Equity.
In conclusion, the Labour Council of Metropolitan Toronto and York Region strongly urges that Bill 79 and its proposed regulations be amended to make them truly mandatory by including all the essentials in the act and by strengthening enforcement mechanisms of the commission. We believe that members of the designated groups need a strong employment equity law and an equally strong Employment Equity Commission.
Mr Tilson: Thank you. I have a question on one particular area that your paper does not deal with, although you have indicated your support to various groups that have dealt with it, and that is the issue of seniority, namely, under subsection 5(2), and I think it's also dealt with in section 41.
Of course, the union groups that have appeared before this committee have opposed that. Certainly by preserving seniority rights, which is what this bill is -- Bill 79 certainly preserves the principle of fairness to existing employees. The difficulty is, of course, in this economy and the concerns of companies small and large trying to stay alive, it makes the employers' task of changing the makeup of the workforce even more difficult in a poor economy.
Is the union movement trying to talk out of both sides of its mouth at the same time? In other words, supporting the principles of employment equity and yet, in effect, by the support of the seniority principles, that support is in fact making it more difficult for these various groups to move ahead in particular firms, and they're relying simply on a contract that may be against, inadvertently, the principles of employment equity.
Ms Hall: One of the projects that our women's committee and our human rights committee at labour council has taken on is to provide some information for unions that are, of course, going to be very affected by this act. Our position is and always has been that these groups should have been included in our seniority lists many, many years ago. My own employer is going through this problem where we have someone who has recently won a human rights ruling where, yes, they are going to be employed. They should have been employed eight years ago.
Employment equity, as I said to one of my members who -- I was very surprised when the issue was raised that, you know, this is really unfair. I said, "Well, you know, employment equity is great until it affects you." You never think it's going to affect you. But no, of course they have to be integrated into our seniority system and, yes, there is going to be some displacement. That is an issue that the unions have to work out on an individual basis, and of course there is going to be accommodation. As I say, these people should have been on our seniority lists many years ago. They should have been in the workplace.
Mr Tilson: I guess what I'm trying to get at, asking really for qualification, because almost every union group to a T has supported the principle of retaining the principle of seniority rights. But do I understand from your comments just now that you --
Ms Hall: I would say the unions that have made presentations here obviously have not been in touch with our human rights and our women's committees at labour council, or at the Ontario Federation of Labour or at the Canadian Labour Congress.
Mr Tilson: So you're opposing what those union groups have been saying to this committee.
Ms Hall: I'm not opposing them. I'm saying that of course there's going to be accommodation. I'm sure these unions realize there's going to have to be a certain amount of accommodation made in their own seniority lists in order to get these groups of people into the workplace, and most of them would agree that indeed these people should have been there many years ago.
But of course it poses a tremendous problem when you have people, especially long-term employees -- I mean, there are a lot of workplaces now that don't have junior employees. The junior employees are long gone; they've been laid off and perhaps may not be coming back. Yes, it is a real problem.
Mr Tilson: Would you consent to an amendment that would excuse employers from non-compliance where this is due to the seniority clause?
Ms Hall: No.
Mr Tilson: Why is that?
Ms Hall: I mean, that's not a question I can answer here without seeing the wording of the clause.
Mr Tilson: I'm just talking in general principles. I'm trying to get out of the issue that the unions come and say one thing and yet on something else, such as the seniority clause, they say something quite different. I mean, either the union groups support employment equity completely or they don't. They can't have it both ways. If that's the case, then I guess what I'm asking for, would you consent to an amendment or would you have any opposition to an amendment?
Ms Hall: Yes, I would. I really don't see that employers should be allowed to get out of it because they have a seniority list in place.
1520
Mr Mills: Is Pat your name?
Ms Hall: My name is Shannon Hall.
Mr Mills: Shannon. Oh, yes. Okay, thank you. Glad to read your presentation, your brief, here this afternoon. As someone who's worked 50 years, I can tell you that there aren't many dodges I haven't experienced from employers in my lifetime. I read with interest your position here about people who work in hospitals requiring grade 12 as a discriminating move. I can tell you that when I worked for the public service, which wasn't too long ago, I remember going for a job and I took the job description and went to a labour lawyer and said, "What do you think of this?" He said, "Well, Gord, are you going off in space somewhere?" I said, "No, they just want me to climb a ladder." This is how they work it, so I have a lot of empathy. If you're going to send someone into space, that's fine, but to climb a ladder, let's keep it right.
To get back to my question -- I've given you a little preamble of where I'm coming from -- I'd like to put a human aspect on some of this, instead of these crazy questions that try to mix up the person; I'm not here to do that. What I would like to say to you is, do you see any merit in the posting of job descriptions with the equity plan? Do you think that would help, that people know what the job description is so they don't play jiggery-pokery with someone to say that you haven't got the qualifications, or they add a bit, just to exclude certain people? I know this: They do this all the time in the public service. What do you think about that idea?
Ms Hall: You say employers should have to post --
Mr Mills: The job description.
Ms Hall: The job description with the Employment Equity Commission?
Mr Mills: Yes.
Ms Hall: As well as in the workplace and in public?
Mr Mills: Yes, so that you've got some recourse to come back.
Ms Hall: Certainly.
Mr Mills: Would you think that might be a good idea to consider?
Ms Hall: I see no reason not to, if the Employment Equity Commission is going to be fair and reasonable and if it is not going to let job descriptions slide by that indeed are discriminatory. It can happen.
Mr Mills: It looks like it is happening.
Ms Hall: It's not necessarily the be-all and end-all.
Mr Mills: No.
Ms Hall: It may prevent some problems, but it may not prevent others.
Mr Mills: I've had a lot of experience in this trickery, I tell you. Thank you, Mr Chairman, for exercising equity to the questioner.
Mr Murphy: Unlike my friend from Durham, I'm going to try and ask some earthbound questions. I agree with your first submission related to putting stuff in the act, as opposed to the regulations. I think that generally is a matter of principle. I think it makes sense to provide the opportunity for public debate on matters of important policy and this is no doubt one of them.
I want to go on and talk a bit about one of the issues I don't believe you refer to directly, and that's the question of plans themselves and what is filed with the commission. My understanding of the way the act works now is that in essence, for the plan in a unionized workplace or partially unionized workplace, the bargaining agent will have access to the plan because it's in essence a part of the bargaining process over employment equity. I think I'm right in that.
It then seems to me rather odd that the way the bill is drafted, the bargaining agent then would have access to the plan, but in a non-unionized or unrepresented workforce would not have access to the plan and it would not be filed with the commission unless the commission does the investigation. Am I correctly understanding the way the bill is operating? Do you see it the same way, that in essence the bargaining agents would have the plan but unrepresented workers wouldn't and neither would the commission unless it made the effort to get it?
Ms Hall: I'm really not sure. In all honesty, I don't know. I would say it would certainly be easier for a unionized workplace to have access to an employment equity plan than a non-unionized workplace, because a non-unionized workplace generally has no one who represents the employees, certainly not on a formal basis.
Mr Murphy: I guess that in part I'm picking up on your recommendation 7, where you talk about the disparity, in essence. I think this bill has a real problem between the rights, and to a certain degree obligations, in a unionized setting versus the rights and obligations of employees in an unrepresented or non-union setting.
Ms Hall: I think the gist of this is that in a non-unionized workplace there are no employee representatives. Chances are that an employee representative will be appointed by the employer, and that's not necessarily going to work in the best interests of the employees. They should have their own representative. On the other hand, in a non-unionized workplace, you simply may not get a representative on a voluntary basis. No one may come forward to do it. So that's what we're saying: We don't want someone appointed by an employer. We really want to stress that the employees have to be protected. If they wish to have a representative, then that representative has to be protected from any reprisals.
Mr Murphy: Let me follow up on that. The previous presenter, at least with respect to the disabled employees within a workforce, recommended election of a disabled representative. Actually, it said specifically in a non-unionized workforce, although I can't see why you would make the distinction, non-unionized versus unionized, in terms of a disabled representative. In any event, election of a representative was one proposal. That could be a method by which you have representatives of non-unionized or unrepresented workforces.
You haven't really talked about the issue of how. I can't remember, but as to the occupational health and safety committees, for example, that are to be formed, I'm wondering if there are any lessons we can draw from that model as to how unrepresented or non-unionized employees can be brought into the process of negotiating employment equity. I wonder if you can comment on that. Is there anything in occupational health and safety, for example?
Ms Hall: My recommendation would be that if you want active employment equity representatives, they should be elected among the employees. There should be an election process or a selection process by the employees, not by the employer.
Mr Murphy: For example, the Labour Relations Act has a process by which some of that happens in certain contexts. Do you see that election process being included in either the legislation or the regulations, or at least some rules regarding how it's to be conducted?
Ms Hall: Could I see them where?
Mr Murphy: In the legislation or the regulations.
Ms Hall: Certainly, right in the legislation; I would say in the legislation rather than in the regulations.
The Acting Chair (Mr Cameron Jackson): Ms Hall, thank you very much for your presentation.
1530
CANADIAN ALLIANCE FOR VISIBLE MINORITIES
The Acting Chair: Mr Krishan Uppal, president of the Canadian Alliance for Visible Minorities. Welcome, Mr Uppal. I understand you came in from Ottawa today to be with the committee. I should indicate that your brief has been prior circularized to each member of the committee, so they have copies of your brief.
Mr Murphy: That means we have a copy?
The Acting Chair: Yes. It's been circulated. You may not have it. I was covering myself.
Please proceed. You have up to one half-hour.
Mr Krishan D. Uppal: The Canadian Alliance for Visible Minorities appreciates the opportunity to express our views on this very important bill. You have our text before you. I would like you to correct one typographical error which appears on page 2, paragraph 2. The second word should read "employers" instead of "employees." We could not send you more copies. I have been in a rush. This is our brief in proper form and I can pass these four copies to you. Because of austerity, we couldn't produce more.
The Canadian Alliance for Visible Minorities has concluded that legislation does not work in the absence of political will. The glaring example is the Employment Equity Act passed by the House of Commons in 1986, which failed to make progress in bringing about equality in the workplace or correcting disadvantages in employment experienced by visible minorities, women, aboriginal people and persons with disabilities, as the federal departments were excluded from the application of the act. The exclusion, by its very nature, sent a strong message to those subject to the act that government itself is not sincere about employment equity.
The federal bureaucrats argued that there was no need to have the act apply to government departments because it had in place an employment equity policy established by the Treasury Board a few months before the act was proclaimed. This argument underscores the determination of the bureaucracy to have its own way while imposing discipline and control on others. Thus, the bureaucracy figures prominently in the causes of the failure of the act. When bureaucrats can, with impunity, silence elected members like yourselves, employers can clearly determine who holds the reins of power.
Some employers are opposing and arguing that Bill 79 is reverse discrimination. They must be reminded that this legislation is enacted precisely because voluntary response did not produce results and they have failed to hire fairly, thus leaving visible minorities in the cold. It must be remembered that visible minorities are not looking for any favours but equal rights of employment, retention and promotion on merit.
Now I will discuss Bill 79. This bill enunciates the truism that the designated groups experience more discrimination than other people in finding employment, retaining employment and being promoted. It concludes, and rightly so, that as a consequence of that state of affairs, members of the designated groups are underrepresented in most areas of employment, especially in senior management, and overrepresented in those areas of employment that provide low pay and little chance for advancement.
The bill concludes that the cause of the plight of the designated groups as enunciated above is systemic and intentional discrimination. It thus seeks to bring about some form of redress. A review of the bill reveals certain deficiencies, which if not remedied will only help to exacerbate the systemic and intentional discrimination now in vogue. The discernible weaknesses, taken in the order in which the sections appear in the bill, are as follows:
Part I, section 2, paragraph 2, on page 4, states as follows:
"Every employer's workforce, in all occupational categories and at all levels of employment, shall reflect the representation of aboriginal people, people with disabilities, members of racial minorities and women in the community."
"Community" is not defined in the bill. Is it the Ontario community or the geographical community in which the employer is located -- for example, Ottawa, greater Toronto, Sudbury etc? If it is the Ontario community, this would be more meaningful. Otherwise, disparities would arise. One would find predominantly black, white or aboriginal areas in Ontario while that is not the intention of the bill.
This section should also be compared with subsection 50(2); it is on page 22 of the bill. While this section speaks of numerical goals in the employment equity plan to be reflective of the representation of the designated groups in the population of the geographical area, paragraph 2 of section 2 calls on the employer to reflect at all levels of employment members of racial minorities and women in the community. These two sections are in conflict and therefore they should be reconciled.
Paragraph 3 of section 2 -- this section appears on page 4 of the bill -- of part I states as follows:
"Every employer shall ensure that its recruitment, employment and promotion practices and policies are free of barriers, both systemic and deliberate, that discriminate against aboriginal people, people with disabilities, members of racial minorities and women."
The alliance feels that this section does not say how the employer will comply with this assurance, and it does not refer to any section of the bill or other legislation for guidance. Here the question is also, what recourse would be available if the employer fails to provide that assurance? Paragraph 3 should be harmonized with paragraph 2 by adding to the last line of the latter the words "in the community."
Paragraph 4 -- this section appears on page 4 of the bill -- of part I stipulates that, "Every employer shall implement positive measures for recruiting, employing and promoting aboriginal people, people with disabilities, members of racial minorities and women."
This section raises the following questions:
(A) What are those positive measures? In our environment, measures that appear positive to an employer may not appear positive to another, and hence, discrimination, racism etc; and
(B) What recourse would be available if the provision is breached?
Unless there is some way of measuring positive measures, the debate as to whether a measure is positive or not will be moot.
Subsection 5(2) of part II -- this appears on page 6 of the bill -- enunciates that "employee seniority rights with respect to a layoff or recall to employment after a layoff...are deemed not to be barriers to the hiring, retention or promotion...."
1540
We would like to raise a question: What is meant by seniority? Is it the number of years employed or the rank in the organization? If it is the latter, then due to the fact that the designated groups occupy the lowest ranks in employment, they will be first to be laid off and last to be hired.
Subsection 8(1) of part III, which appears on page 6 of the bill, stipulates, "Every employer shall implement and maintain employment equity...in accordance with the employer's employment equity plan."
The underlined phrase appears here for the first time in the bill and creates some confusion as to what it is. This could be remedied by including in the interpretation section of the bill the following definition:
"`Employer's employment equity plan' means the plan referred to in section 11 hereof."
Section 10, part III, which appears on page 7 of the bill, obligates every employer to "review the employer's employment policies and practices.... The purpose of the review is to identify and enable the employer to remove barriers to the hiring, retention and promotion of members of the designated groups."
We would again like to raise a question: What will be done with the review? A review by an employer who is against employment equity is not likely to indict himself by finding barriers. This initial review should be done by a third party, neutral -- I repeat neutral -- and should leave it open for the employer to challenge before the commission or before the tribunal.
Section 11 of part III states that the regulation "must provide for the elimination of barriers identified under section 10," that is, by the employer. This is a pious hope like the Lord's Prayer. A fisherman never says his fish is rotten, and an employer is unlikely to be truthful in indicating that in his enterprise there are barriers to hiring, retention and promotion. You are more likely to get the stock answer from employers, that is, they cannot find qualified people for the jobs. This section is one of the weakest parts of the bill.
Subsections 11(2) and 11(3) appear on page 7 of the bill and state that "the employer shall file with the Employment Equity Commission a certificate respecting" the employment equity plan and "a copy of the plan" itself, but the bill does not say what the certificate should stipulate and whether the commission has the option to alter the plan to make it more realistic and equitable.
Now we have some views on enforcement, which is a very important topic. In our first brief, last year, presented to your government, we made a very deliberate stand that the enforcement part should have a little bit more tooth, but we won't find that. It is the most important aspect of the employment equity program. It should therefore be clear and unequivocal and firm.
Clause 22(2)(a) states that an employee of the commission, pursuant to part III, "may enter any place at any reasonable time." This would create an argument between the employer and the employee of the commission. We are not all reasonable people. Had that been the case, there would be no need for an Employment Equity Act. What is reasonable to an employee of the commission may not be so to an employer. This provision to avoid argument should state, "may enter any place during normal working hours."
Subsection 23(1) appears on page 12 and states, "If the commission is of the opinion that an employer may not be complying with part III, the commission may endeavour to effect a settlement with the employer that will ensure compliance." This section, however, does not state or specify what period of time. Therefore, it should be amended by adding the words "within 30 days of reaching that opinion" at the end thereof.
Subsection 23(2) appears on page 12 and includes provision for any settlement reached pursuant to subsection 23(1) to be embodied in an agreement. It is our opinion that to be effective, this agreement should be filed with a court and become a judgement of a court so that its breach will be subject to contempt proceedings. This section should be amended accordingly.
Subsection 24(1) on page 12 refers to specified steps which the commission may take to order for an employer to comply with part III, but it does not say what those specified steps are or say where to find them. This section is therefore vague and should be amended accordingly.
Clause 25(2)(b), appearing on page 14 of the bill, affords an employer exemption from complying with part III if "all reasonable efforts" were made to implement the employment equity plan. This section should be rewritten as follows: "The employer shall use the best efforts to implement the plan...." The words "best efforts" have meaning in law. They mean no stone will be left unturned. On the other hand, the word "reasonable" is arguable as to its meaning.
Section 31, appearing on page 16 of the bill, calls for the tribunal to refer every application under part III to one of its employees for settlement, but it does not say over what period of time. This is very important in all cases, and particularly human rights and employment equity cases. The time limit for taking action should be clearly spelt out, otherwise matters could be drawn out to such an extent that justice will be denied the victims involved. In this instance, the alliance feels that 30 days should be given to reach a settlement.
Subsection 31(3) should also include a time frame. After the words, "the tribunal shall," the words "10 days after being so informed" should be added.
Subsection 41(1) should be amended by adding thereafter the words "or regulation," because the powers that be should not have to go back to the Legislature to obtain authority for additional functions.
Our conclusions: the unequivocal finding that people in the designated groups experience more discrimination than others in finding employment, retaining employment or being promoted. They are underrepresented in most areas of employment, especially in senior and managerial positions. We also feel that they are overrepresented in those areas of employment that provide low pay and little chance for advancement. Therefore, it requires corresponding explicit action to rectify the situation. A reference in the bill to imposing obligations on the employer to reasonableness and provisions for allowing employers to prepare their own employment equity plan considerably weaken the endeavours to rectify the unseemly situation.
In a very real sense, the bill fails to provide equity and equality now. It should be made immediately mandatory, because voluntary employment equity has proven to be totally unworkable. Instead, it gives employers a holiday from complying with the employment equity program. For example, in complying with section 9 on page 7, collection of workforce information; section 10 on the same page, review of employment policies; and section 11 on the same page, employment equity plan, compliance is gauged by the effective date, which is defined as the day that section 11 comes into force. Section 11, however, is silent as to a specific date. The bill therefore should be amended to include a more precise date, such as the date the bill comes into full force and effect.
According to the bill, compliance is expected on the part of the crown in the right of Ontario 12 months after the effective date, on the part of the broader public sector 18 months after the effective date, and for the private sector with 500 or more employees 18 months after the effective date. All of this is required while the bill is quite unclear as to the effective date.
1550
The enforcement section is also quite weak. If the government is really serious about employment equity, it will enact penalties for those who fail to comply with the legislation as it pertains to the crown in the right of Ontario in the form of demotions, dismissals and other disciplinary action. With regard to the private sector, the act should provide heavy fines for the chief executive officer and lesser fines for middle managers and below who fail to comply with the legislation.
In a nutshell, Bill 79 is at best only palliative, rather than corrective and remedial. What is required is direct surgical operation to a cancer in our society which has been allowed to thrive unchecked far too long.
Mr Fletcher: Thank you for your presentation. As far as Bill 79 is concerned, it appears that you don't like the bill. I'm just wondering, should we forget about Bill 79 and do as the opposition suggests, allow --
Mr Curling: No opposition suggested that.
Mr Fletcher: -- the Human Rights Commission to be the commission to handle all of these things; forget employment equity but just let it go to the Human Rights Commission?
Mr Uppal: The Human Rights Commission is a failure itself. The Human Rights Commission is a paper tiger, having no teeth. The Human Rights Commission -- we have already made the point in our last brief. I think the Human Rights Commission should be indicted, because the commission has not produced anything. We have cases where the people have made complaints three years ago, four years ago. Some of the people have even died.
Mr Fletcher: I know. I think the Human Rights Commission's a joke myself, but what they're saying --
Mr Uppal: But if the Human Rights Commission had been doing its work, if the Human Rights Commission had been effective, then we wouldn't need that.
Mr Fletcher: Then we don't need it. So what we should do is --
Mr Uppal: Let me go further.
Mr Fletcher: Okay, sorry.
Mr Uppal: Even if our voluntary effort had worked, even then we wouldn't need this kind of legislation, because the voluntary effort has failed, the Human Rights Commission has failed. We need employment equity and we need it right now, and we need it with teeth. We do not want to have a paper tiger. If it's a paper tiger, the paper tiger must have nuclear teeth.
Mr Fletcher: One thing I do notice is that what I'm hearing from other groups, and being supported by the opposition, is that the employment equity is not needed, that we should go to the Human Rights Commission. But the people who set up the commission are sitting over there, and it wasn't set up right the first time and I don't think they could set employment equity up right the first time. I think it's something that has to evolve and I think that as time progresses, the employment equity legislation will become much, much stronger than what the Human Rights Commission has ever been.
Mr Uppal: This is my hope too.
Mr Curling: Thank you for your presentation. I just want to make it clear that at no time has this party on our position ever stated we don't need an employment equity plan.
Mr Fletcher: You did so. Tell him to read Hansard.
Mr Curling: The fact is that, as you rightly say, what we need is effective legislation so that injustice can be addressed. As you've stated very emphatically here, having identified barriers, a law should be in place to eliminate those barriers as best as possible.
We are quite conscious that we are dealing with human beings and we cannot legislate human beings' thoughts, in a way, but the fact is it can go a far way. But ineffective legislation will do more damage. I hear you loudly and clearly here, and not like what this member is trying to do in misleading the public to say that we stated we don't want employment equity. At no stage would we ever say that.
Mr Perruzza: You just don't want the legislation.
Mr Tilson: I'd like to comment briefly on your typographical --
Mr Perruzza: Point of clarification.
The Chair: No, there is no point of clarification.
Mr Perruzza: There is a point of clarification. If you'd hear me out, you'll see that there is a point of clarification.
Interjection: It's not in order.
The Chair: I would take points of order, but we don't take points of clarification.
Mr Perruzza: You won't.
The Chair: No.
Mr Tilson: I'd like to comment on the typographical error that you referred to in your paper. Actually, we've had both employers and employees who have suggested that there is reverse discrimination with respect to this legislation.
I must confess that the whole purpose of employment equity legislation is to do away with discrimination, particularly among these four groups and the visible minority groups that you represent, in the workplace. That's the purpose of it. But in fact this legislation is indeed discriminating against some white females and all white males by the implementation of a quota system. Because of that, do you believe that this will create, if anything, more resentment on the overall subject of discrimination, more resentment and possibly more racial division in society, which we don't want?
Mr Uppal: I think your analysis is not correct. I do not see that it will create any divisiveness in society. The Canadian people are very generous people. They are compassionate. They know in their hearts that some terrible things are going on. The visible minorities, especially the visible-minority women -- they have a double jeopardy against them. But if the visible-minority women happen to be disabled women, there is triple jeopardy.
I think the Canadian society knows it. They feel it, but they are not coming out as we are coming out. I think that this legislation will make them think that injustice has been done in the past and this should not be allowed to continue. I don't think that this is reverse discrimination. Whenever people say that, they are diffusing the issue.
Mr Tilson: I guess the difficulty is, sir, that certainly representations are being made to members of this committee, both publicly and privately, that there is indeed reverse discrimination, by the very fact that preference is being given to non-Caucasian individuals, dealing specifically with the topic that you've brought to this committee, and those individuals are most upset. I guess it's a concern that all of us have. We certainly don't want any more racial division than there already is, and that's the fear from observations that we've seen in this committee and observations that we've seen privately outside this committee as to what this legislation potentially can do. It's just an observation, sir.
Mr Uppal: I can understand your concern, but I think that we are the people who have been bearing the brunt. We haven't said anything in the past, but now, with this legislation, at least we think we have got a hope. Without effective legislation, visible minorities will continue to experience racism, sexism on the job and severe discrimination if one happens to be disabled, especially, as I said, women.
I think that in your private conversations -- I've no doubt in my mind that the people must have appeared before you.
Mr Tilson: Yes.
Mr Uppal: They must have said loud and clear --
Mr Tilson: Inside and outside this committee.
The Chair: Mr Tilson, we're out of time.
Mr Uppal: They've got big numbers. They can make more noise. I can understand that. But I think the time has come when those people should put thinking caps on, to think about it. They should think through that they have done a terrible injustice to the native people in this country. They have been doing injustice to visible minorities. They are still doing injustice to women, but I think women are getting somewhere. We are the forgotten people, and I think with your support, with the support of your government and with this act, we will be somewhere.
The Chair: Mr Uppal, thank you for taking time to prepare this submission and to participate in these hearings.
Mr Uppal: I have some executive summary copies. If you wish, I can leave them for you also.
The Chair: Yes, please do.
Mr Uppal: It won't cost you anything.
The Chair: Thank you. We appreciate the help.
1600
ONTARIO SEPARATE SCHOOL TRUSTEES' ASSOCIATION
The Chair: The Ontario Separate School Trustees' Association: Mary Hendriks, Patrick Meany, Carol Devine and Patrick Slack. Welcome to this committee. Just as a reminder, half an hour goes by very quickly. You may want to consider how much time you want for the members to ask you questions at the end of it.
Mrs Mary Hendriks: Thank you. We appreciate this opportunity to present our brief before this select committee. To my left -- just so that you can put names to the faces and faces to the names -- is Patrick Meany, our first vice-president; next to Pat is Carol Devine, our second vice-president; to my right is Pat Slack, our executive director, and I'm Mary Hendriks, president of the Ontario Separate School Trustees' Association.
The Ontario Separate School Trustees' Association represents 53 Roman Catholic separate school boards in Ontario, which in turn provide Catholic education services to more than 575,000 students. We are here to jointly present our brief, which for the most part is divided into three sections.
If I could draw your attention to page 2, first of all, in the main body of the brief. The first part notes the support of the Ontario Separate Schools Trustees' Association for employment equity. The second part raises issues of more general concern and comments specifically on certain aspects of Bill 79. The third part deals with the role of the Ministry of Education and Training in employment equity and argues that the Minister of Education and Training ought to have direct responsibility for administering employment equity in the system of education.
Perhaps we can go back to the executive summary at the beginning of the booklet that has been submitted. Part I, employment equity and Roman Catholic separate school boards: OSSTA supports the concept of employment equity and believes that it ought to be implemented by school boards as a matter of social justice. OSSTA believes that the workforce employed by a school board ought to be representative of the community served by the board.
Employment equity is both a means to an end and an end in itself. Only when it occurs naturally, without compulsion, will we have achieved the elimination of intentional and systemic discrimination. Only then will we have achieved true respect for the inherent dignity of individuals and communities.
The system of education must lead the way in employment equity. Few sectors of public enterprise imitate the size, scope and complexity of education. The hopes and dreams of children and parents are held in trust by the system of education so that, quite apart from the functional importance of the system in achieving employment equity, it also plays an important symbolic role.
Respect for the inherent dignity of individuals and groups must be alive in the system of education. For this reason, the Ontario separate school system strongly endorses the policy of employment equity and its application to school boards.
In part II, issues of concern, the first item that we put forward has to do with employment equity and collective rights. Employment equity aims at ending discrimination and securing individual equality. In one sense, it aims at the vindication of individual rights. In another sense, employment equity reflects group rights enforced through state action since it seeks to better the lot of groups which have been historically disadvantaged.
As we noted in previous statements and documents, OSSTA believes that the coexistence of individual rights and group or community rights in our Constitution is part of the genius of Canadian constitutional arrangements. It is a recognition that concepts such as pluralism and multiculturalism cannot survive unless they are sustained by practical measures; mere freedom to associate is not sufficient. OSSTA believes that this coexistence ought to be preserved, not only because it is part of our tradition, but also because it is a reflection of our basic human needs.
We assume that it is not the purpose of employment equity to lead to the assimilation of protected groups. Assimilation as a goal would be inconsistent with, for example, the rights of aboriginals under the Constitution and with the "preservation and enhancement of the multicultural heritage of Canadians" required by section 27 of the charter.
The Ontario Human Rights Code recognizes the importance of community and collective rights in section 24, which you will find set out on page 8 of our submission.
OSSTA recommends that the employment equity legislation clearly acknowledge the primacy of section 24 of the Ontario Human Rights Code. Although subsection 46(2) of the code gives it primacy, the need to ensure that section 24 is taken into account in designing employment equity plans requires more explicit reference in Bill 79.
Separate school boards exist at a unique intersection of human rights in Canada. They are an expression of collective rights in two respects: denominational rights under subsection 93(1) of the Constitution Act, 1867, and French-language education rights under section 23 of the charter -- over 85% of francophones in Ontario are educated in Roman Catholic separate schools. These collective rights are further assured in part by section 19 of the Ontario Human Rights Code, which is quoted on page 9 of our submission.
When the Human Rights Code was passed in 1981, an argument was made that unless denominational rights were expressly acknowledged in the statute, it was vulnerable to constitutional challenge under subsection 93(1) of the Constitution Act, 1867. OSSTA believes that this argument has weight when applied to employment equity legislation. OSSTA does not want to see such legislation challenged as unconstitutional either on denominational or on linguistic grounds, which were added to the Constitution in 1982.
For that reason, in response to the discussion paper, OSSTA recommended and continues to recommend that Bill 79 contain a provision similar to section 19 of the Ontario Human Rights Code, quoted above, modified as necessary to include linguistic rights.
Mr Patrick Meany: How should employment equity reconcile individual and collective rights? In OSSTA's opinion, the key to a reconciliation is in the selection of the comparative base for determining employment equity. The discussion paper implied that the comparative base was to be a geographic concept only. Bill 79 appears to have carried forward this geographic concept of community.
If the concept of community were more carefully and sensitively defined, it could accommodate collective rights without impairing the goals of employment equity. In its application to school boards, it must be carefully tailored to take account of the communities which school boards serve. As noted, employment equity plans reflecting the diversity of our Catholic school community would be welcomed by OSSTA.
OSSTA recommended and continues to recommend that the comparative base community for employment equity purposes be the ratepayer base served by a school board, subdivided into its English and French sections.
The consultation draft regulation under Bill 79 indicates that no consideration has been given to the special community served by school boards, either English or French. The sole comparative base is geographic. Because there is also no provision in the bill or in the regulations similar to section 18 or section 23 of the Ontario Human Rights Code, guaranteeing the right of separate schools to hire in accordance with the faith community they service, it is particularly important that the comparative base be the community that separate schools serve rather than the community at large.
1610
As noted, the Catholic community is subdivided into English-speaking and French-speaking Catholics. In most areas of the province, the francophone community is significantly more homogeneous than the anglophone community. The imposition of representational criteria that go beyond the francophone community to the larger Catholic community would undermine the former's ability to transmit its own culture, which is one of the purposes of section 23 of the charter. It would also be extraordinarily difficult to find appropriately qualified personnel.
The Catholic community is multiracial, multi-ethnic, multilingual and heterogeneous but it shares a common faith. Religion is not synonymous with any of the groups designated in the bill. Since it is religion which forms the basis for the community served by separate school boards, there seems no reason why that defining characteristic should not be used to enable separate school boards to draw their employees from the community they serve.
OSSTA recommends that the legislation permit school boards to conduct statistically valid sampling exercises of their own ratepayer groups to determine the composition of their particular communities.
The bill uses census information to define the workforce on which the employer must base the comparisons in its employment equity plan. Religious affiliation and language are also recorded in the census. Additional data are easily obtainable from assessment records. Including these concepts in the definition of the workforce would serve to make the community with respect to which separate boards must compare their workforces somewhat smaller than it would otherwise be, but no less representative of the designated groups served by the legislation.
The constitutional rights of Catholic school communities to take matters of faith and language into account in hiring does not adversely affect the principle of employment equity. These rights should be acknowledged in the regulation to avoid any potential ambiguity in the process of implementation.
Mrs Carol Devine: The identification of designated group members: Bill 79 and the consultation draft regulation indicate that only self-identification will be utilized for the purposes of determining membership in the designated groups.
The separate school community has had considerable experience with self-identification. The enumeration and assessment systems are based on this concept. In our experience, self-identification typically understates the membership of minority groups, in some cases dramatically. It is apparent that self-identification alone is not an adequate way to determine designated group members.
OSSTA therefore recommends that the identification system be a combination of self-identification and identification by another, together with some form of dispute resolution if agreement cannot be reached.
Workers' participation in employment equity planning: In our submissions on the discussion paper, OSSTA noted that employment relationships are affected by many issues. There are enough such issues in the education field over which collective bargaining presently occurs to make the addition of yet more issues related to employment equity an unattractive prospect.
Employment equity is a value which employers and employees ought to share equally. It should not become a matter of discord between them. Still less should it become a weapon which one can use against the other. For this reason, OSSTA is pleased to note that Bill 79 separates employment equity planning from collective bargaining and job action. At the same time, we recognize that some overlap is inevitable and must be reconciled.
OSSTA recommends that Bill 79 provide specifically that it supersedes and amends automatically any collective agreement which contains language inconsistent with the bill.
We also recommend that Bill 79 provide expressly that no employees will lose their jobs as a result of employment equity.
Employment equity measures in education: Employment qualifications in the education system are highly regulated. Qualifications are important to ensure educational quality, a matter which is coming under increasing scrutiny. There is consistency between employment equity and the maintenance of professional qualifications. OSSTA supports the achievement of both goals.
We recommend that the consideration of foreign qualifications be accompanied by tests for language proficiency and cultural familiarity and, if necessary, by appropriate language development and cultural awareness classes.
Timing and compliance: Compliance standards in the education area must be very carefully crafted to reflect not only the need for appropriately qualified personnel, but also the availability of such personnel generally. OSSTA supports the flexibility of compliance standards in Bill 79.
We have some particular concerns about the process adopted by Bill 79. It appears that there is a gap in the bill. Under section 24 of Bill 79, the Employment Equity Commission is given power to make compliance orders directed to employers without a hearing. The employer is permitted to appeal the order to the Employment Equity Tribunal which may rescind, vary or confirm the order.
There is, however, no provision requiring the Employment Equity Tribunal to hold a hearing in respect of the appeal. This is in contrast to section 31 of Bill 79 that obliges the tribunal to hold a hearing if the employee considers that mediation or further efforts at mediation are not a practical means of resolving the application. We are advised that in the absence of an express provision for a hearing, there is great doubt about whether one is required.
OSSTA assumes that the Legislature does not wish to deny to employers ordinary due process as is reflected in the Statutory Powers Procedure Act. That act requires tribunals to conform to minimum procedural standards in a proceeding. It seems only fair that these minimum protections be provided to employers and their staff in making employment equity work.
OSSTA recommends that subsection (4) be amended by the addition of the underlined words so that it would provide, "The tribunal shall hold a hearing and may, by order, rescind, vary or confirm the order of the commission." Our suggestion will remedy what must surely, we believe, be an inadvertent omission.
We do have an additional comment we would like to make, and I'd like to ask our executive director, Mr Slack, please, to make a comment.
Mr Patrick Slack: I would like to simply quote from a letter which we received today from our legal adviser. It has to do with this same section as just read by Mrs Devine. I'll read from the letter:
"You have asked for our opinion on the legal interpretation of section 24 of the proposed Employment Equity Act, 1992 (Bill 79), the relevant portions of which provide:
"`24(1) The commission may, without a hearing, order an employer to take the specified steps to achieve compliance with part III if it considers that any of the following circumstances exist:...'
"`(3) The employer may appeal the order to the Employment Equity Tribunal within thirty-five days after the Commission mails it.'
"`(4) The Tribunal may, by order, rescind, vary or confirm the order of the Commission.'
"You have asked whether the Employment Equity Tribunal is required to hold a hearing in respect of the employer's appeal of an order of the Employment Equity Commission under section 24. In our opinion neither Bill 79 nor other law clearly imposes on the tribunal the obligation to hold a hearing when considering an employer's appeal. In consequence the minimal safeguards for a party subject to the rulings of a tribunal prescribed by the Statutory Powers Procedure Act, 1990, may not be available for an employer under Bill 79.
"Judging from the tenor of Bill 79, we doubt whether this was the intention of the drafters, since it means that an employer could be subject to an order without ever having had an opportunity to deal with the issues on their merits and to put forward its position in accordance with the rules of natural justice. The difficulty and uncertainty are easily repaired, however, by an amendment," which we have just read to you, "to subsection 24(4) adding the underlined words:
"`The Tribunal shall hold a hearing and may, by order, rescind, vary or confirm the order of the commission.'"
Thank you.
1620
Mrs Hendriks: In part III of our submission we outline the role of the Ministry of Education and Training in employment equity. The system of education is a highly complex, interrelated and interdependent enterprise involving different levels of government and many different groups of employees. This system, despite its massive nature, is reasonably well understood by those who function in it. It has an infrastructure that works and does not require duplication. If employment equity is to work in the system of education, those responsible for administering it must be familiar with the system.
OSSTA recommends that that responsibility for employment equity in the system of education be delegated to the Ministry of Education and Training.
In conclusion, the Ontario Separate School Trustees Association supports the concept of employment equity and believes that it ought to be implemented by school boards as a matter of social justice. OSSTA believes that the workforce employed by a school board ought to be representative of the community served by the board.
In this submission we have made a number of suggestions about the application of employment equity in the system of education, and have urged that responsibility for administering it be delegated to the Minister of Education and Training. We believe that the unique nature of the educational enterprise makes such a delegation eminently reasonable, and that it is necessary for the achievement of employment equity in education. Thank you, and we'd be prepared to discuss our brief with you at this time.
Mr Murphy: Thank you for your presentation; I very much appreciated it. Many years ago I had the opportunity to work for the Ministry of Education and worked on Bill 30, so I well appreciate the degree of complexity that's involved in these kinds of changes.
I have one question related to your recommendation regarding the ratepayer being the base of the assessment as opposed to geography. I can think for example of Our Lady of Lourdes church in my riding, which now has a substantial Filipino and Tamil community.
It strikes me that on the face of it, I'm not sure that there is a distinction between the membership in the Catholic community of designated groups versus the membership in the broader community of designated groups. What I'm wondering is whether you have any figures or analysis that shows that there is a real difference between the designated-group membership in the Catholic community as opposed to the larger community that would justify using a different basis for the survey base.
Mrs Hendriks: I don't believe that we have -- certainly not here -- prepared statistics. However, our concern would be that in any given community, it may be that the Catholic ratepayer base does truly reflect the representation of the various groups in the community, but in other jurisdictions it may not.
Our concern would be that we are a system that is providing education for a specific denominational segment of the community and that the ratepayer base that supports our system and whose mandate we are required to provide education for is reflective of the people within that geographic base, understanding that our philosophy is that of a specific denominational base.
Mr Murphy: If I can follow up, would some of your concerns be satisfied if, for example, we gave the commission the power to provide other bases on application by an employer? If you said to the commission, "This is your standard model, the geographical model," but you can come as an employer and say, "Look, for our purposes, another basis is more appropriate," and if the commission says, "Yes, that's acceptable to us," then you can use that other basis. Would that kind of amendment that gave the commission the power to look at it and approve it come towards helping your concerns to some degree?
Mrs Hendriks: Providing it respects the denominational rights that we have as a Catholic school system.
Mr Murphy: No, but presumably the reason you would apply is for that very reason. You'd come and say: "Look, there's a real difference, and for our circumstance and our case, there is a different character in certain circumstance. So we should do our Catholic ratepayer group as the basis as opposed to geographical community."
Mr Meany: I would fear that this leaves discretion, if I understand the suggestion, in the hands of the commission. I think I would prefer to see it legislated.
Mr Jackson: Thank you for your brief. As one who spent a year and a half of his legislative life working with Patrick Meany on Bill 30, I was under the impression that the charter supersedes anything we do in this bill with respect to protecting your employer rights with respect to hiring from your faith community. Is that not correct?
Mrs Hendriks: We would assume that would be the case, yes.
Mr Jackson: You have one legal opinion in front of you. I would assume that you have another; if you've not shared it with us, fine. But I'm sure you've received that legal opinion somewhere.
Mrs Hendriks: That is correct.
Mr Jackson: I shouldn't leave that point until I share with you my concern. I have a real concern about moving into the area of faith communities because if we use the same educational model, there are rather large employers with faith-based private schools and once we, as legislators, get into this area, we've got to be very, very careful. I think cogent arguments could be placed about faith-based education and their need to employ and then saying: "Well, they have certain rights. Why shouldn't we?" I'd appreciate maybe a comment on that.
Then finally a quick question with respect to the base. I understand your recommendation on page 4 with respect to your community being determined as the ratepayer base, but would it not be even simpler if it was just simply the Catholics as recorded, whether they support the public or the separate board? Wouldn't that be a simpler target date and a fairer target date if that wasn't more reflective of the Catholic community as opposed to the Catholic ratepayer community, or am I reading that incorrectly? Your ratepayer base, I would assume, is the people who pay taxes to your board versus the number of Catholics who live in a given community.
Mrs Hendriks: That is correct. The reason this suggestion is put forward is because we felt that this would be the simplest way in which to identify the actual community that we represent. It's not always known -- I don't believe it would always be known -- who, as a public school supporter, is a Catholic.
Ms Akande: Thank you for your brief. I wanted to clarify your recommendation at the bottom of page 6. You recommend that the consideration of foreign qualifications be accompanied by tests for language proficiency and cultural familiarity. I wanted some clarification around cultural familiarity. It rings somehow synonymous with Canadian experience, and I'm wondering.
Mrs Devine: If I might refer you to page 17 of the larger brief, there is a bit of clarification there. The cultural familiarity, two issues that are mentioned there are, for example, disciplinary approaches, that perhaps there may be differentiation between those which might be acceptable and common practice in some cultures which would not be within our Canadian culture. So in that sense, something specifically which would relate to the classroom situation.
Ms Akande: I think, however, if you'll permit me, that your example given on page 17 is somewhat based on a rather stereotypic view, which some might take exception to. I know I do. But let's go on.
There's one other question that I wanted to ask and is also on page 6 -- it's very convenient; other questions have been asked -- and that is that you have a recommendation that Bill 79 provide expressly that no employees will lose their jobs as a result of employment equity. I support what you're saying. I'm wondering, though, about the way you have written that.
Let me pose a situation: Someone in fact may be competing in downsizing of a school, which we know happens, and when you let teachers go -- let's talk about teachers -- it's the last in and the first out -- all things being equal, and equal sometimes goes down to the date of hiring, and you have people of the designated group and others, how would you make your decision, then, in terms of who went?
1630
Mrs Devine: Again, I guess this is where we get into the area of the collective agreement and its relationship to this particular piece of legislation.
Ms Akande: And yet you've asked that this legislation supersede that agreement.
Mrs Devine: Well, that it not be written in as part of, or not be one of the bargaining components that would become part of a collective bargaining process. It is an interesting question and I guess, quite frankly, I haven't thought it through to its conclusion, okay?
Mr Meany: If I might add something on the earlier one about the stereotyping, the language proficiency and culture familiarity, I would suggest to Mrs Akande that she doesn't reject out of hand this suggestion because, if adopted, it provides some protection from those rednecks who say, "I don't want a person who doesn't know about these things teaching my kid," or whatever, because we're in a position to say, "This person is taking language classes or cultural awareness classes," or whatever. I think it's positive rather than negative.
Ms Akande: It can be positive, except that it --
The Chair: Ms Akande, we're really running out of time. I want to thank all of you for taking the time to come and make your presentation to us today.
NORTH BAY AND AREA CENTRE FOR THE DISABLED
The Chair: I call upon the North Bay and Area Centre for the Disabled, George Livingstone. Welcome.
Mr George Livingstone: Good afternoon. I'm George Livingstone from the North Bay and Area Centre for the Disabled. Our organization deals within the area of approximately a 40-mile radius of North Bay, servicing about 8,800 disabled citizens. We provide a wide array of services which include job counselling, computer training, transportation, to name a few.
With regard to the preamble of the Employment Equity Act, 1992, we at the centre for the disabled felt that this act could have been the answer to the employment conditions of the disabled. However, in studying the proposed act and the legislation we find that various articles, regulations, and actually the wording leave us with very little protection and in some cases no protection at all. We would like to point out the following areas of concern:
(1) We would like to see the time frame shortened by 50% in the second and in the third stages of the first employment equity plan cycle.
(2) References made in part I of the Employment Equity Act, subsections 1(2), 1(3) and 2(1), "entitled to be considered for": The words "be considered for" we would like to see removed.
(3) The word "may" appears throughout this document in approximately 30 places, in reference to the commission "may," the tribunal "may," and especially subsection 45(1) in reference to the Minister of Citizenship appointing an advisory council. We strongly feel that the word "may" should be replaced by "will."
(4) Exclusions: Presently, police and construction have in their employment blind, deaf, quads and paraplegics, aboriginals, women, and other minority groups in the various capacities. This includes dispatchers, office clerks, architects, engineers, accounts etc. To exclude them from this legislation would be a step backwards as in this case it would only encourage security and other related fields to seek exemption from the act.
In construction it should be not the construction industry as a whole but a definition of certain positions, such as heavy machinery operators, steeplejacks etc. Other positions, such as electricians, supervisors, plumbers etc, should be included. To exclude minority groups, women and aboriginals would close the door for these designated groups to seek employment in these fields.
The Employment Equity Commission should have the same power as an Ombudsman, reflecting impartially the needs of minority groups such as the disabled. Those in the minority groups failing favourable decisions should still have the right to appeal to the Human Rights Commission.
Question: Can a person in a designated group directly apply to the Human Rights Commission for a settlement?
We at the centre for the disabled who have during the last 16 years employed, counselled and worked directly as job seekers have found that most employers are quite receptive. However, incentives, whether monetary, training allowances, assistive devices and/or acting as a liaison between the employer and the employee, have been a tremendous asset in creating or placing the disabled in employment.
We welcome the employment equity plan, but we are adamant in our position that it should be more positive in order for it to succeed.
Basically that's all I've got to say, so we've got a lot of time for questions.
Mr Tilson: Sir, the issue of the disabled person of course I put, as I'm sure you do, in a completely different category than the other three groups.
Mr Livingstone: Why?
Mr Tilson: The difficulty is that the implementation of the assistance to these people -- I mean, I look, for example --
Mr Livingstone: Are you telling me that there are no disabled aboriginals?
Mr Tilson: Of course you could look at it that way.
Mr Livingstone: I just thought I'd throw it at you.
Mr Tilson: That's great. I'm looking at the specific issue of section 20 of the regulations, which talks about what employers shall be responsible for. They shall be responsible for a number of measures to meet the needs of persons with disabilities -- and this is in accordance with the Ontario Human Rights Code -- such as communications and human support services, for example, access to a sign language interpreter, technical aids and devices, changing the design of the job by using such things as flexible hours of work or job sharing.
Many of these things, specifically to the small employer, are going to cost a lot of money. I didn't mean to insult you with respect to the issue of the disabled person being different, but many of these things are going to cost somebody a lot of money, either the employer or the government. So I look at that and ask you whether you've put any thought to it as to who should pay for all this. Should this be the employer's responsibility? I could even emphasize the group of employers who have employees of 50 to 99 or 50 to 100, whatever the lower group is. Should the employer be responsible for the cost of all of these things in implementing the very plan that they're being mandated to put forward? If they don't, they're going to be violating the act. They're going to be violating this regulation.
Mr Livingstone: That could be true at the present time, mainly because there's not too many communicators or interpreters out there.
Mr Tilson: That was just an example that I gave.
Mr Livingstone: I know.
Mr Tilson: There are all kinds of other things that are required, that may be required, and all of this is needed. You could tell me firsthand what's needed. The issue is, particularly in these difficult times when businesses are trying to keep going, who is going to pay for them? This government's broke. It hasn't got any money; we've seen that.
We also have the issue of employers who are groaning about even keeping jobs alive, let alone increasing wages.
1640
Mr Malkowski: This is a perfect example of systemic discrimination.
Mr Livingstone: That's why we only have about 123 people who are in that situation employed.
Mr Tilson: I guess I'm asking you the question, who's going to pay for all this?
Mr Livingstone: That's a good question. There's no realistic answer for it. Whether we have to set up a fund for it through the employers that are out there or through a government, I don't have that answer. That is a very good question, but it's got to be resolved. There's not only that type of situation. You've got all kinds of situations where you can't hire the person because he needs DragonDictate, and that costs you $15,000. Maybe the small employer doesn't have that.
Mr Tilson: One of the suggestions that's been made is that perhaps certain tax breaks should be given to employers to assist them if they're being forced into that. There may be other measures, but I guess what I'm looking at from you is whether you have any thoughts that might assist particularly the small employer in implementing these requirements.
Mr Livingstone: But then again, if the small employer is going to have to go into that route, he may not want to hire that particular person. There are other people out there who may have a different type of disability who would be sufficient for him.
Mr Tilson: Hence the problem.
Mr Livingstone: Why pick on the little guy and say, "This guy's got the burden now; he's going to have to supply an interpreter," which may cost him $20,000?
Mr Tilson: Which gets back to your observation, sir, that the bill is so unbelievably vague, which leads to my next question: Is it possible to enforce this bill for specifically assisting the disabled?
Mr Livingstone: Effectively, I don't think so. Even the government can't do it itself within its own ministries.
Ms Carter: Thank you very much for your brief. You've given five suggestions for tightening up the bill, and I think 1, 2 and 3 we can duly note, but I think a little clarification is needed for number 4.
First of all, the police services aren't included in this act because they're already accounted for, or already have their own legislation, so that employment equity is already well on its way in the police services, and that won't change. And the construction industry is not exempt, but it is seen as having some very specific characteristics, so a separate regulation is being drawn up for that and a consultation process is under way because of those unique characteristics. For example, they have hiring halls and the employers and the unions are separate in the sense that there's not a permanent workforce for any particular employer, and in general the temporary nature of the work. Does that solve your problem there?
Mr Livingstone: That might be for the small employers, but there are fairly large businesses out there that have big offices.
Ms Carter: Well, there are large and small, but the particular characteristics --
Mr Livingstone: But you're more accountable as a smaller unit.
Ms Carter: -- of that industry will be taken into account.
Mr Livingstone: Sure. I've worked for somebody selling insurance, finding leads for him. That was a single venture, really. He was a broker and he was working by himself. So there's work out there. It's finding them, though. There are other people out there saying, "We don't want you." I've run into a lot of those.
Ms Carter: Okay. Do some of my colleagues have a question?
Mr Malkowski: Your presentation was very informative, very succinct and to the point, but maybe from some of the members, especially Dufferin-Peel, the kind of questioning you get I find is an example of the kind of patronizing systemic discrimination that we find throughout society.
Anyway, I want to ask about the benefits of small businesses and also talking about accommodation for consumers. You know, it's not just disabled people who end up benefiting from some of these adjustments --
Mr Tilson: On a point of order, Mr Chairman: I can't sit here and allow this member to accuse me of patronizing individuals of this committee. I asked an innocent question and he has no right to make those statements. He can keep them to himself.
The Chair: It's a point that the member has made. Mr Malkowski.
Mr Malkowski: Anyway, as I was saying, I was talking about the benefits of consumer accommodation for disability. For example, ramps -- small businesses can benefit from that because as they move things in and out of their business they'll be able to use the ramp; or note-takers during meetings, people may need that; or technical devices that can often save some time. Other people in the office can also take advantages of those kinds of devices. It helps more than just one person. I just wanted to clarify that.
But I wanted to ask you something, sir. Do you feel it would be beneficial, then, if we were to talk a little bit about the definition of "disability" or "severe disability"? Would you like to see that somewhere within the bill or are you happy with it remaining in regulations? What would you think about that and that area too, to ensure we have a guarantee that the definition of "disability" and "severe disability" is safeguarded? What do you think?
Mr Livingstone: I think in regard to those with severe disabilities, they're the hardest ones we're going to have trouble finding jobs for. They're the ones who are going to be discriminated against most. I guess in a way the employers, if they're going to hire disabled, they want somebody high profile so that they're showing that, yes, they're doing their job; they've got somebody out there and you can see he's disabled. But it's going to be the invisible disabilities that are going to be the hardest to pick up because people will not want to self-identify. In some ways, I don't blame them, because at the present time if you self-identify, it could cost you your job. People with severe disabilities -- there are very few jobs out there for them at this time. It's not that they can't do something. It's just that nobody sat down and figured out what areas they can work in. They may not be able to work for a full day, but they could job share or something like this. Does that answer your question?
Mr Malkowski: Yes, thank you. Would you agree that the inclusion of the definition of persons with disabilities, let's say, on the spectrum from moderate to severe and to include also invisible disability in the bill itself would be beneficial?
Mr Livingstone: I think it would be. It would cover a lot of areas that are a little grey at the present time.
Mr Curling: Thank you, Mr Livingstone, for coming all the way from North Bay and --
Mr Mills: Now we know why --
Interjections.
Mr Curling: I'm glad I woke up Mr Mills. It is rather interesting as the comment made by Ms Carter that -- almost an apology for ineffective legislation to say that the construction industry is exempted because it's rather unique and it's different.
Ms Carter: It's not exempted.
Mr Curling: You see, what happened, the regulations for the construction industry will be later down where we won't see so we don't know -- and regulations are really the meat of the legislation. Therefore, that is put aside long after where we can make some concrete and effective amendments to this legislation. It's so important, the comment that she had made -- and the reason I'm saying this is because it's important to deal with particular things that you talk about. She said they have their own hiring hall. This is the problem. We have some places that have their own system and so therefore it breeds more discrimination, systemic process. That is why the disabled people are not even handled properly.
For instance, the question my colleague for the third party was pursuing very effectively -- he was asking about cost. It's extremely important if you're going to have effective legislation -- it is one good thing to put the legislation in place, whether it's enforceable or whether it's in some respect -- where the cost is laid.
For instance, your group or some of the people you represent, some in your area, complain about transportation. In other words, even while the employer will make provisions by law for accommodation, the problem is they can't even get to work. Do you have any comment about the government making more effort or doing things in order to get transportation and things like that for the disabled group to basically come to work?
Mr Livingstone: Yes. At the present time, say within North Bay itself, we have a pair system, which is run by the city. But then we also have school starting in September so there we have a problem because the schools do not have school buses to pick up the disabled children that go to school.
Mr Curling: They're just going for education, to be trained to come to work.
Mr Livingstone: That's right. Who's got priority? Do you take the kids at school first or do you go to your job first? That is part of another problem. But there are also a lot of vehicles out there that are accessible, within groups, that are not being utilized.
Mr Curling: So employment equity cannot stand by itself, as an employer alone trying to do this, but it has to work in conjunction with government making some strong commitments in order to let it happen.
Mr Livingstone: Transportation, housing --
Mr Curling: Exactly.
Mr Livingstone: It all feeds together. It's all linked.
Mr Curling: On another point here, shortening the time frame, there was a presentation made today by a very prominent lawyer who actually put some face to the legislation. It was shown that maybe the first case that may come before it can be tested is 10 years down the road. It gave us that opportunity, it gave all those people who are watching the proceedings, an opportunity to realize that this law itself will not be effective for another 10 years. Did you realize that?
Mr Livingstone: That's a minimum. It goes even higher than that if you look at the 12-year base. Maybe by that time I'll be on old age pension too, so I won't have to care, I won't have to work -- except for the people who are coming on stream and then I'll fight a little harder.
The Chair: Thank you, Mr Livingstone, for coming from North Bay to make this presentation to us.
This committee is adjourned until 10 am tomorrow.
The committee adjourned at 1652.