Legislative Assembly of Ontario

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

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

CONTENTS

Tuesday 7 September 1993

Employment Equity Act, 1993, Bill 79

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

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

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

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

Chiarelli, Robert (Ottawa West/-Ouest L)

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

Duignan, Noel (Halton North/-Nord ND)

Harnick, Charles (Willowdale PC)

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

Mills, Gordon (Durham East/-Est ND)

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

Tilson, David (Dufferin-Peel PC)

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

*In attendance / présents

Substitutions present/ Membres remplaçants présents:

Carter, Jenny (Peterborough ND) for Mr Mills

Fawcett, Joan M. (Northumberland L) for Mr Chiarelli

Fletcher, Derek (Guelph ND) for Mr Duignan

Marland, Margaret (Mississauga South/-Sud PC) for Mr Tilson

Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Harnick

Also taking part / Autres participants et participantes:

Ministry of Labour:

Beall, Kathleen, legal counsel

Hewson, Katherine, manager, rights and analysis, workplace policies and practices branch

Clerk / Greffière: Freedman, Lisa

Clerk pro tem / Greffière par intérim: Bryce, Donna

Staff / Personnel:

Baldwin, Elizabeth, legislative counsel

Campbell, Elaine, research officer, Legislative Research Service

Kaye, Philip, research officer, Legislative Research Service

Joyal, Lisa, legislative counsel

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

TUESDAY 7 SEPTEMBER 1993

The committee met at 1341 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.

The Chair (Mr Rosario Marchese): Given an understanding or agreement that we had on Thursday that we would have a technical briefing by ministry staff on the amendments that have been proposed by the government, we will do that. It's difficult to assess how much time we will need, but hopefully we'll be able to do it in an hour or so and we'll assess it at that point based on how the proceedings go.

I would like to begin with that and introduce Katherine Hewson and Kathleen Beall. I would just remind the members that this is a technical briefing. If you have political questions or political statements to make, leave that for the political people. Otherwise, we're just getting information from the ministry staff.

Mrs Elizabeth Witmer (Waterloo North): I had a fax I received today which I feel I need to bring to the attention of this committee before we begin. It's from Jake Smola. I think reference has been made throughout the three weeks of hearings concerning the firefighter issue in the city of Kitchener. Mr Smola was contacted by Lisa Freedman and he wanted to let us know that the mailman delivered the letter from the Minister of Citizenship to him on Saturday, September 4, and unfortunately, the time for hearings has passed.

I have heard from several other municipalities and groups as well, and I think it's important to recognize there are people who did not have access to the committee simply because they didn't have knowledge that there were hearings taking place. This individual, because of the situation in Kitchener, is very, very concerned that he didn't have an opportunity to appear.

The Chair: Just as a reminder, if people want to write briefs, they can continue to do so, and obviously we continue to accept them. This will be debated as well in committee of the whole, so there will be other opportunities for people to bring forth additional amendments in the event we don't deal with everything here in the way that members would like. I appreciate the information.

Mrs Margaret Marland (Mississauga South): Mr Chairman, I'm just wondering, it's now a quarter to 2. I understand there was a motion last week to avoid the kind of delay the committee is now faced with while all the amendments are compiled from all three caucuses. It does seem a little disorganized, I must say. I think it's unfortunate, because that was anticipated by the motion that was placed about the fact that everybody's amendments wouldn't be available in time for this meeting, and that's exactly what's happening.

We're sitting here without all the three caucuses' amendments in front of us. We're going to be receiving them and reading them and trying to deal with them, because we were not able either to have them in advance or have them today and have time to spend on them today without the committee sitting today. I understand there was a motion placed last week that would have avoided this chaos and this delay.

At 1:30 today, there were five members in the room, three of whom were opposition members. I'm just saying that the government isn't being very businesslike, both in defeating what was a perfectly logical housekeeping motion or even in attending with its full complement of members to this committee. Even now, there are three government members sitting here.

The Chair: Mrs Marland, part of the agreement we came to in the end, at least as I communicated it to the committee, was that if the members did not receive these amendments by Saturday, in the event that did not happen, today we would talk about what else we might do, and that I, as the Chair, would understand that people would not be as adequately prepared, but that if they did, we would be prepared to begin the clause-by-clause discussion on this bill. Perhaps you should tell me, did you get them on Saturday, as many of us did?

Mrs Marland: I didn't.

Mrs Witmer: I got it on September 5.

Mr Alvin Curling (Scarborough North): I got mine. I think what we're talking about is beyond just getting the amendments from the government. We're talking about being properly organized and ready. We understand, as you know, that there was a holiday in between, and to get all these things together, of course, you have to have staff to do this, and have it ready and prepared and not waste people's time on this matter. So we know that regardless of getting it on Saturday or so, we had to be ready for Tuesday. Monday was a holiday, and of course, some people took the social contract Friday off, which would throw it into worse chaos.

The Chair: I understand what you're saying, Mr Curling. I can only repeat what I said. We recognized there would be some of these difficulties. The discussion was, are we going to get these amendments? I believe you got them. September 5 was a Sunday. I thought some of us might have got it Saturday, depending on where we were, I suppose.

Mrs Witmer: Mine came through on my fax. It was dated September 5 and I got them in my office on September 5. That's when they came through.

The Chair: My immediate sense is for us to continue with the clause-by-clause discussion of Bill 79. The ministry staff are here to review those amendments the government has made and to give you an opportunity to ask the staff questions you might have of them with respect to those amendments. I would like to begin, therefore.

Mrs Marland: Mr Chairman, I'm agreeing now that you should begin, but I find it rather curious that you're saying to the public, "Please continue sending us your briefs." In the meantime, you're going to start your clause-by-clause, particularly the government's amendments. It's going to be interesting to see if the government will accept any amendments based on any briefs that are submitted after today. I doubt it very much.

The Chair: Let's see how it all evolves. Please begin with this briefing.

Ms Katherine Hewson: My intention today is to take you through the government amendments and explain what they mean. I believe you have them in front of you now.

The first motion to amend deals with the preamble. It would strike out the words, "It is caused by both systemic and intentional discrimination" in the third, fourth and fifth lines of the second paragraph and would substitute, "It is caused in part by systemic and intentional discrimination in employment." It would go on to say: "People of merit are too often overlooked or denied opportunities because of this discrimination. The people of Ontario recognize that when objective standards govern employment opportunities, Ontario will have a workforce that is truly representative of its society."

Secondly, at the end of the third paragraph, there would be added the words "and the provision of the opportunity for people in these groups to fulfil their potential in employment."

The effect of these two amendments would be to clarify that not all designated-group underrepresentation in the workforce is due to workplace discrimination. This recognizes that there are other factors such as educational, training and other inequities and demographic changes that have also contributed to designated group underrepresentation.

1350

Mr Curling: Can we ask questions now?

The Chair: As I see hands with respect to each amendment, I will take them so we can get clarification.

Mr Curling: My question then is, as you said, what this is going to do is recognize that there are other factors such as -- and you listed them, education, what have you. But what are we doing about them? I know it's been listed here but I'm not quite sure what it means.

Ms Hewson: I think it clarifies that this act pertains to the systemic discrimination that occurs in employment. That clarifies that this is the focus of this legislation. There are, I understand, other government initiatives regarding some of the other inequities that are not dealt with by this legislation.

Mr Curling: You're saying that day care facilities should be looked after if we want to talk about employment equity, that transportation for the disabled, which was talked about, should be looked after before we can really get employment equity legislation in. I'm trying to understand what you said, that the cause is more than inequities and systemic discrimination in the workplace.

Ms Hewson: I think what the change to the preamble attempts to do is to clarify that not all inequities are due to systemic and intentional discrimination in the workplace, that there are other reasons.

Mr Curling: I presume we look after that later on in the act.

Ms Hewson: Well, employment equity deals with workplace discrimination.

Mr Curling: It's very interesting, Ms Hewson.

Mrs Witmer: I'm curious about the addition of the sentence, "People of merit are too often overlooked or denied opportunities because of this discrimination." I find that an interesting sentence. I'm not sure what it means.

Ms Hewson: I think what is meant by that is that people who have merit, who are qualified, are often overlooked for reasons not related to their abilities.

The Chair: Okay? Moving on.

Ms Hewson: The second motion also concerns the preamble. It would add a third paragraph that would read:

"The people of Ontario recognize that working to eliminate discrimination in employment and increasing the opportunity of individuals to contribute in the workplace will benefit all people in Ontario."

This amendment reflects the positive aspects of employment equity in terms of both fully utilizing the capabilities of the designated groups and maximizing the productivity and competitiveness of Ontario's workplaces.

Mr Tim Murphy (St George-St David): If I can just follow up, my understanding is that during the course of the hearings we were having, there was a lot of debate about the concept of merit. If my memory serves me correctly, the government's point was that there was nothing in this bill which, it said, contradicted the idea of merit, that the best person for the job should get the job, and that what we're trying to do is eliminate barriers and identify measures that could include people who historically may not have been fully included.

What I don't see in here is anything -- and you can correct if I'm wrong, so that's how it becomes a question -- that says ultimately that the purpose of this goal is to eliminate barriers so that the best-qualified person is hired for the job.

Ms Hewson: Those words are not in the preamble as it would be amended.

Mr Murphy: Is there anything you see that says that in different words?

Ms Hewson: I think there are two things. One is people of merit and, secondly, objective standards. I believe that the objectiveness of the standards would refer to bona fide occupational requirements.

Mr Murphy: The words "people of merit" are in there, and I think that states the problem. What I'm getting at is that there's nothing in here which says that when we apply those objective standards -- I think we all agree with the notion that there is discrimination that has resulted in people of merit not getting opportunities, be that intentional or systemic. What we're trying to get at is, once we remove the barriers and we do use objective standards that really relate to the job in question, that the person who's best qualified for the job continues to be the one whom an employer is allowed to hire, retain, promote or whatever other aspects this bill applies to. The concern that I think has been raised is that we have something like that in there and, correct me if I'm wrong, I don't think there is anything in these amendments that addresses that concern.

Ms Hewson: As I've said, I think the two things that perhaps would address it are the word "objective" and, secondly, possibly the word "merit." But I would agree with you that there is no phrase that says employers may hire the most-qualified person, and you're quite correct in saying that that specific phrase is not in there. However, I suggest that also there is nothing that would preclude it. It is not included specifically.

Mr Murphy: No, and I suppose this goes to a debate we're going to have later, but ultimately it's about the concept partly of selling this bill, of stating the purpose that we're trying to have a merit-based society that's truly based on merit and not on irrelevant and inconsequential factors, and part of what we're trying to do in an employment equity context is get rid of those irrelevant and inconsequential factors.

I suppose what I'm trying to get at is something that states that specifically, and what you point to is really part of identifying the problem and saying, "This is our hope for the future," but it doesn't focus, it seems to me, on that specific right to hire the best-qualified person. I guess you're agreeing with me, in summation, that the wording to specifically say that isn't in here.

Ms Hewson: That's correct.

Mr Curling: I want to take it from a different point of view. Assist me to understand this, because you say it recognizes the introduction of a truly objective merit standard. Again, my understanding of employment equity, this legislation, is to identify systemic barriers, to get rid of those barriers and to bring all those people who have been locked out, those who have the merit, the qualifications, so they can compete equally. Am I getting it that there is going to be some merit standard set up?

Ms Hewson: No, sir. What is said is that it's "when objective standards govern employment opportunities." I think the word "merit" is earlier on. So it's not standards for merit but objective standards for employment opportunities.

Mr Curling: Again, I'm no lawyer and maybe that's why I am all twisted around the garden path here. It says that with the introduction of a truly objective merit standard, designated groups will no longer be excluded from employment. Basically, I think, from my colleague's point of view, he's saying if we identify these barriers, get rid of the systemic barriers, merit is there, that the best-qualified will get the job.

Ms Hewson: I think that that is also what is said in the amendment to the preamble, because it says there is a recognition that when objective standards, ie, that have to do with bona fide requirements, govern employment opportunities, then there will be representativeness.

Mr Curling: We'll have more to say when amendment time comes around.

The Chair: Exactly. Okay? Moving on.

Ms Hewson: Section 2: There's an amendment that would add "recruitment" after "hiring" and would replace what is there now in paragraph 4 with the words, "with respect to the recruitment, hiring, retention and promotion of." These amendments are technical in nature to clarify that employment equity must apply to all levels of employment, specifically recruitment, hiring, employment and promotion.

The Chair: If there are no questions, just move on. Mrs Witmer.

Mrs Witmer: I'm a little puzzled here because in the regulations we use the term "qualitative measures." Suddenly, here you're using the words "positive measures" and now you've added the words "supportive measures." What is your definition of "positive measures" and now this new term that's been added, "supportive measures"?

1400

Ms Hewson: That amendment would clarify that there are two separate types of measures: one is positive; one is supportive. They are both types of qualitative measures. So "qualitative" is the umbrella; the two types are positive and supportive.

Mrs Witmer: Could you define what you mean by "positive" and what you mean by "supportive"?

Ms Hewson: There isn't a definition, of course, in the bill, as you know. Supportive measures would be things like flexible work arrangements, anti-discrimination and harassment training, that not only will benefit members of the designated groups but also will benefit all employees. Positive measures are more focused. They could be things like special recruitment efforts. They are aimed at either one or a number of designated groups to permit them to benefit specifically.

Mr Murphy: Mr Chair, if I may, there seems to be some confusion, because of the lateness in filing the amendments and the change between the weekend version and this morning's version, that we may not all have the same copies in front of us. I just want to make sure that we do have.

The Chair: I thought we distributed the same copy today --

Mr Murphy: I want to double-check to make sure.

Mrs Marland: I didn't receive the weekend version. Is there a difference between the weekend version and today's?

The Chair: I don't believe so.

Ms Zanana L. Akande (St Andrew-St Patrick): Yes.

Mrs Marland: Why?

The Chair: Ms Witmer, are you using the copy that Ms Freedman gave to you or not?

Mrs Witmer: You know, I can't believe it. I made a simple motion last week indicating that we would be unable to do the job the way it should be done today and what we're seeing is the result. Yes, I am using the draft motion that I got Sunday on my fax machine. I have now been handed, a few minutes ago, I guess the original. I have made notes on the draft. I'm not a magician and --

The Chair: Ms Witmer, could I ask you, please, to use both the copy on which you made comments, including the one we just distributed today to all of you.

Mrs Witmer: I wish you had let us know that there was a difference between the two.

Mrs Marland: What is the difference and why?

Mrs Witmer: Talk about disorganized.

The Chair: Clearly, there may be additional things on this new draft based on further work, so I would ask all of you to refer to both copies in the event that --

Mrs Marland: So, Mr Chairman, there were amendments distributed on the weekend by the government and now today there are amendments to those amendments. Is that what's happening here?

The Chair: Let me ask the ministry staff to do the following: In the event that in the Saturday or Sunday version there is any word change, could you please make reference to it so that as they leaf through it we will all know? Can we do that?

Mr Curling: We want some clarification, do we?

The Chair: No. I was just hoping that by so doing we could just move on. If there are any changes, they would indicate it in advance of reading the amendment so that we would know so that you could refer to your old notes, your old copy, the other copy and this new copy that you got today.

Mr Curling: Mr Chairman, I just want to understand what you're saying, because you're saying to us we have to juggle these balls now; I must have the old one for Saturday, the new one for Tuesday and listen to the explanation at the same time. It's very difficult to understand. The parliamentary assistant said, "It's only words." That's exactly what we're dealing with, words, and we have to make sure that we have the words right, in the right place, in the right --

The Chair: If I can, it may not even clarify again and you may want to speak to the issue again, but I would ask you to use this copy that was given to you today. I understand the difficulty it poses for some if you've written on it and there may be a word that's different. That is why I ask the ministry staff to make reference to it.

Mr Murphy: Don't belittle it by saying it's just a word.

Mrs Witmer: There are significant changes.

Ms Akande: I just thought it would be helpful to all of us if in fact the ministry staff might in fact give us some idea of the extent of the change between the weekend copy --

The Chair: That's what I suggested.

Ms Akande: I'm so sorry.

The Chair: But it may not be enough.

Mrs Marland: Could I ask a question on process? I'd like to know why they bothered sending them out on the weekend if they were going to present different amendments today. That's the first question I have, and then I have another question. Maybe the ministry could answer why today there are amendments to the amendments. It's a fairly straightforward question.

The Chair: Do staff have an opinion on that?

Ms Hewson: The amendments to the amendments are small and technical in nature, and are the result of further discussion over the weekend with legislative counsel on how best to word some of the areas. There's nothing -- Kathleen, correct me if I'm wrong -- of substance that has changed except for the one that we have just seen, which has been broken into two motions and some words have been added. That is the only major change; the others are really very small and technical in nature.

Mrs Marland: Okay. So, Mr Chairman, the answer is that there was further discussion with legislative counsel over the weekend since the government's original set of amendments were circulated to the members of this committee.

I would like to ask you whether you would agree that the fact that there had to be further discussion over the weekend and subsequently there have been changes, technical in nature -- I understand this is a technical briefing we're having anyway, and if we're talking about legislation and the way bills are written and then passed into law certainly we're talking about something of a technical nature. There is a political side to it. But basically the whole process is technical. It's a matter of writing laws and passing them. There's a technical aspect to that.

Would you agree, Mr Chairman, that the government was not ready with the amendments when it set them out on Saturday or, as my colleague the critic for our party received them, on Sunday the 5th, and in fact it was still having ongoing discussions to get the wording correct? So this meeting is premature, obviously.

The Chair: Ms Marland, I understand what you are saying; I appreciate what you are saying. My feeling is, however, that there will be ongoing discussions on this matter until this bill is passed and there may even be changes, I suspect, possibly -- but I wouldn't stake my life on it -- in committee of the whole, or there might be other additions, which means there will be discussion on this in an ongoing way.

I don't think that whatever changes have been made affect the proceedings of today, frankly. As we go along, if you observe that there are changes which are major and you did not have an adequate opportunity to reflect on the nuance of a difference, then we could debate that.

Mrs Marland: I can't make those observations. I only have today's set. Isn't that great? So I guess I'm lucky that I only have one set. But for those people who have studied the original set and have had discussion on it, then they may have been discussing something that's no longer an item.

The Chair: And the members will point that out. As we go along, they will point out some of those differences and changes, and they might speak to how frustrated they are with that, if they could do that. Can we please move on?

Ms Hewson: We move on to section 3.

Mr Murphy: Mr Chair, if I can --

The Chair: On the next section?

Mr Murphy: No. We sort of jumped around a little bit. My understanding is we were dealing with the amendment of the word "hiring," the paragraphs 1 and 2 amendment.

Did we get the technical briefing on the new paragraph (5) to section 2? There was a question asked about it, I know.

Ms Hewson: That's quite correct, sir. New paragraph 5 would read: "Every employer shall implement supportive measures with respect to the recruitment, hiring, retention and promotion of aboriginal people, people with disabilities, members of racial minorities and women which also benefit the employer's workforce as a whole."

The amendment clarifies that not only must employers implement positive measures, as set out in paragraph 4, but they must also implement supportive measures for the recruitment, hiring, retention and promotion of the designated groups.

Mrs Marland: I have a question. What I understand, since I only have one copy of amendments, is that this is a totally new paragraph.

Ms Kathleen Beall: Perhaps I can explain. The paragraph is a new paragraph, but what it is there for is to clarify the intention of the motion that was provided in the weekend package. The weekend package, in addition to amending section 2 to add the word "recruitment" after "hiring" for consistency of language, also inserted the word "supportive" measures; it talked about implementing positive and supportive measures. To clarify what was meant by that, it was decided, as a drafting style, that it would be better to split them into two separate paragraphs so that one refers specifically to positive measures and the other refers specifically to supportive measures to aid in the understanding of the legislation.

1410

Mrs Marland: So what you're suggesting is that I probably should have the weekend set of amendments in front of me as well. This amendment "every employer shall implement" leaves no question about the choice of the employer, is that correct?

Ms Hewson: Yes, that's correct.

Mrs Marland: It's a mandatory requirement because of the wording "shall"?

Ms Hewson: Yes.

Mrs Marland: Did it say "shall" on Saturday or not?

Ms Hewson: Yes, it did.

Mr Murphy: I'm wondering whether terminology such as "positive measures" and "supportive measures" is found in any other legislation anywhere in Ontario?

Ms Hewson: Not as far as I am aware. These are phrases which are used in employment equity and therefore, I think, are specific to employment equity and therefore specific to the employment equity bill.

Mr Murphy: I guess I'm having some problem, on its face, understanding what the difference between "positive" and "supportive" is. I know that in the regulations that were circulated there was some attempt to get at what might be "positive measures," and I'm wondering whether any similar kind of idea has been circulated or worked on for "supportive measures."

Ms Hewson: As you know, the consultations on the regulations are still ongoing. From the committee hearings, my understanding is that a number of deputants did discuss this and that there have been some requests for more clarity, both in the legislation and in the regulations. This splitting out and providing specifically for "positive measures" and for "supportive measures" goes some way to clarify the legislation, and I think the ministry will benefit greatly from the presentations that took place over the last three weeks to clarify the regulations.

Mr Murphy: Can you tell me what the difference between "positive" and "supportive" is?

Ms Hewson: Positive measures are specifically for the designated groups. It's easier to explain using some examples: They might be special recruitment measures which perhaps target, for example, women in non-traditional occupations.

Mr Murphy: That would be positive, but not supportive?

Ms Hewson: That's correct. A supportive measure is something that assists designated group members once they are in the workplace. Supportive measures often will help those people, but also will be of assistance more broadly. They will help other people. For example, flexible work hours could be something that would help women, because women have more child care responsibilities generally, but men certainly could enjoy and use flexible work hours for child care or for other purposes.

Mr Murphy: You said something there, and I'm going to follow up on that. Am I to understand that the way that the ministry looks at it -- and if I say "you," I don't mean you personally; I mean the ministry -- is that supportive measures are meant to focus on in-workplace measures and positive can be recruitment measures? If that's the case, the wording doesn't reflect that, because supportive measures are also with respect to recruitment, for example.

Ms Hewson: I don't think that is necessarily the case. As you point out, supportive measures could be for recruitment as well; it's just that those are the examples that spring to mind. The real difference is in the specificity of the target. Positive measures really assist only the designated group members, and supportive measures, although they help designated group members, also can benefit other people.

Mr Murphy: Sorry to take up so much time. "Qualitative measures" is what's it's been called in the regulations. Has some further and new set of definitions been worked up that is going to tell us what "supportive" is over "positive"?

Ms Hewson: There has not been work done to date on that. The regulation consultation period is ongoing until the end of October, so it's likely premature until then to pull everything that everyone has said together to try and make some suggestions.

Mr Murphy: I appreciate your efforts. I still have great difficulty understanding the difference between "positive" and "supportive"; I sort of view them as synonyms.

Mrs Witmer: In paragraph 4 we talk about the "positive measures" which an employer shall implement, and in paragraph 5, we talk about the "supportive measures" which "every employer shall implement." You have added at the end of paragraph 5 "which also benefit the employer's workforce as a whole." First of all, when you talk about "every employer," do you mean every employer in the province?

Ms Hewson: Yes. It's a general principle of employment.

Mrs Witmer: So every employer, whether they employ one or more person, "shall implement supportive measures with respect to the recruitment, hiring, retention and promotion of aboriginal people, people with disabilities, members of racial minorities and women which also benefit the employer's workforce as a whole." You use the words "shall implement." What obligation is there on an employer?

Ms Beall: Perhaps I can assist. You'll note that section 2 of the bill is setting out the principles of employment equity. For one's actual obligations under the act with respect to your particular workplace, you would first turn to the application section of the act to determine the application, which is found in section 6, and then you would turn to section 8, which deals with the more specific obligations. You'd have to look to those sections in order to be able to determine for any particular workplace what your obligations are.

Mrs Witmer: What are you telling me about whether or not this refers to every employer in the province?

Ms Beall: Again, the principles of employment equity apply to every employer in the province. As to the obligations under the act, one looks to the obligation section to determine specifically what obligations apply to any employer.

Mrs Witmer: Why have you added "which also benefit the employer's workforce as a whole"?

Ms Hewson: That's really part of what differentiates supportive measures from positive measures, because supportive measures help designated-group members but they also benefit more broadly the employer's whole workforce.

Mrs Witmer: Such as flextime.

Ms Hewson: Exactly.

Mrs Marland: Your answers to those last four or five questions from both Mr Murphy and Ms Witmer are going to make interesting reading in Hansard, because what I heard was an interpretation of this particular amendment we're discussing that in fact would affect people outside of the group. You gave the example of who takes special kinds of leaves and you said mostly it's women, and that probably is the case but not exclusively any more.

You're putting a requirement here, as I said a few minutes ago: It's not "may implement"; it's "shall." There's no question that the wording says "every employer shall" etc in this amendment. I'm wondering whether it becomes a contradiction in itself, because we're dealing with a bill on employment equity, we're dealing with four designated groups within that bill, yet you end up talking about a benefit to the workforce as a whole and you're not leaving any more defined clarity about who "every employer" is except that they "shall implement supportive measures." This could be a very expensive program for an employer who may or may not even have people outside of those designated groups.

1420

Ms Hewson: My response would be that the employers would also look to the obligations section, in which there are numerical cutoffs which apply to employers who are to undertake employment equity obligations under the act.

Mrs Marland: Chaos will reign. There will be thousands and thousands of lawyers in this province who will become multimillionaires interpreting this legislation for employers and employees in this province.

The Chair: The next section?

Ms Hewson: Section 3. The amendment would be to strike out the current definitions of "employee" and "employer" in the bill and replace them with the following:

"`employee' means a permanent employee, a seasonal employee, and a term employee, and within those categories, includes an individual who is primarily working for an employer on a commission basis, a dependent contractor and such others as are designated in the regulations; (`employé')

"`employer' includes any entity, whether or not incorporated, that employs one or more employees, a trustee, a receiver and a person who regularly engages the services of others on such other basis as may be prescribed by the regulations. (`employeur')"

The Chair: On this section, Ms Witmer?

Mrs Witmer: We'll go on and get the other page first.

Ms Hewson: The next amendment defines seasonal and term employees.

"`seasonal employee' means an employee who is employed in a position that is filled for a specific period of time on a regular basis each year; (`employé saisonnier')

"`term employee' means an employee, other than a permanent employee or a seasonal employee, who has been or is expected to be employed by the employer for three consecutive months or more. (`employé temporaire')"

The definitions clarify that for "employee" it means permanent, term or employees who are hired to fill seasonal positions. Secondly, the definition of "employer" provides some consistency with the definition of "employee," and it explains who is an employer for employment equity purposes. Seasonal employees are those who are hired for a position that is filled for a specific period each year, and term employees are those who are employed or expected to be employed for three months or more.

The Chair: Ms Witmer and then Mr Murphy.

Mrs Witmer: Does "seasonal employee" mean now that an employer is going to have to track those individuals hired, for example, in the retail business at Christmas or summer students hired in the tourist industry?

Ms Hewson: If the employee is a seasonal employee, ie, the work recurs on an annual basis in the same season, yes, that is the case.

Mrs Witmer: So in the retail trade, a store that hires three additional people would have to keep track of those people, and the restaurant trade, camp, summer, tourist?

Ms Hewson: Yes.

Mrs Witmer: That obviously is going to tremendously increase the compliance cost and the amount of regulation for the employer community.

Ms Hewson: Before the amendment, those people would have been included in any case. This probably narrows it rather than expands it from what it was originally in the bill.

The Chair: Mr Murphy.

Mr Murphy: One of the things that is referred to is "such others as are designated in the regulations," both in the definition of "employee" and "employer." I'm wondering if any of the regulations that follow up on those definitions have been drafted yet.

Ms Hewson: They have not.

Mr Murphy: Is there an idea as to who might be subject to regulation or the kinds of circumstances where it might apply?

Ms Hewson: Not at this time.

Mr Murphy: Now, in the definition of "employer" I note, for example, that the words "fee for service," have been dropped and also the "construction project" definition. Can you explain why that is?

Ms Hewson: "Fee for service" has been deleted, but to some extent may be covered by "dependent contractors," which may cover people who are not perhaps employees in the traditional common-law sense of the word but have a dependent relationship with -- I'll use the employer because I can't think of another term, but with another person who is very similar in economic dependency to an employment relationship. That probably meets the policy purpose better than "fee for service."

In terms of the "construction" definition, you may be aware that the draft regulations that are currently under consideration do not apply to construction. There is a need for specific construction regulations that will deal with that industry and therefore it was thought that it's probably premature to put in a "construction" definition at this point, when the definition could most likely be the subject of some consultation with the construction industry and a more appropriate definition may be developed as a result of that consultation.

Mr Murphy: If I can follow up, I think I disagree with you with respect to whether it limits or expands the definition of "employee" or "employer," and for this reason: If I am doing my plan on a certain date, I could look at my term and seasonal employees under the old definition in the act and say, "Well, if they're not employed right now, I don't count them as employees." If I had summer employment, for example, and I did my plan count in October, under the old definition I could have said -- and you're shaking your head, but I think that's right under this definition. I know there was an attempt in the regulation to get at that, but I'm not sure it was successful.

I'm just trying to get at what this does. Your expanded definition would then say that any employer who employed, as Ms Witmer pointed out, Christmas employees who worked over the Christmas holidays in a grocery store to help in that rush, tourism employees over the summer or winter as appropriate, you know, any other seasonal or term employee would then be counted in the term "employee" for the purpose of who was part of the workforce of an employer and that would count in the overall totals, and then divide that out into the occupational groups as envisaged eventually in the act.

Ms Hewson: I would disagree with you. I just refer you to subsection 3(4), which says, "For the purposes of parts III and IV, the number of employees...on the effective date is...the greater of the actual number of employees" or "the greatest number of employees that the employer had" in the 12 months previously. So I think probably since "employee" was more broadly defined, that would have included even more people.

Mr Murphy: Except that your definition of "term employee," for example, says "can be expected to be employed." So if I am an employer who has a project where I'm expanding my facilities or doing something and I know it's going to be a concrete term, where I'm hiring a series of employees for the purpose of doing whatever it is and I know it's going to be longer than three months, and that plan is coming up, I'll count those --

Ms Hewson: Yes.

Mr Murphy: -- which I don't think comes under the old act definition.

Ms Hewson: Yes, I guess it is the difference between prospective and retrospective. The old definition is retrospective and the new definition is perhaps more -- it's not really prospective, but it is based on the reality of who is employed or expected to be employed for a greater number than three months.

1430

Mr Curling: Just a quick question: I'm not quite sure about the seasonal workers you said on the farm -- I'm not quite sure if farmers now, with the recession on, have over 100 people on their farm? But should they have 100 people on their farm, would that be part of seasonal work and they would be counted? Again, if they are counted, the survey itself on this side wouldn't count them, because they are seasonal workers coming from outside. But inside, the statistics do count them, because it will skew the whole statistics.

Mr Murphy: The act would then apply.

Mr Curling: The act would then apply? Is that so? Could you explain it?

Ms Hewson: I think if there is a farm where more than 100 people are employed as seasonal workers, those workers are counted as employees for purposes of the count, for deciding what obligations an employer has under the act.

Mr Curling: If that is the case and they're counted, let's call it the inside survey, then, workplace survey, they would not be counted on the survey outside, on the geographic survey. So therefore, if I'm speaking of 100 here, the census that was outside would not have picked them up. It would more or less skew the whole thing.

Ms Beall: If I can, I'm not quite sure I understand, but I think what you are asking is, if your seasonal workers in the farming industry are coming from outside of your community, what would be the appropriate database for the purposes of doing your calculations for the specs?

Mr Curling: Yes.

Ms Beall: Can you remember, in the regulations it provides for databases with respect to your geographic area, but also provides that if your search area is larger than your geographic area, then if it's appropriate, you may use the database for the larger geographic area, and that kind of detail as to what is the appropriate database for the purposes of determining availability is set out in the regulations.

Mr Curling: Are you saying that my wider geographic area, Jamaica and Barbados, will be included?

Ms Beall: So far, the intention is that Ontario as a whole will be the widest geographic area for which the data will be provided.

Mr Curling: Those folks are coming in from outside of Canada; that's my point.

Ms Hewson: That's correct, but I think there is a difference between a numerical goal and the external availability that is used to create that numerical goal and actually who is hired. Certainly an employer, in that instance, will be likely to exceed its numerical goal.

Mr Curling: The reason I say that is because you have in your legislation exempted the construction industry, because you talk about the complexity. In this situation here, where it's obvious that they're getting their workers outside the geographic area, I'm getting from you that they are still being counted, so I'm not quite sure if I really understand where it's going with seasonal workers here.

Mrs Joan M. Fawcett (Northumberland): If I can give you an example, right now we have several -- I'm not sure of the numbers -- apple pickers coming in to do the apple picking in many of the farms in Northumberland, I'm not just sure how many weeks, but it's not a very long time. I'm just wondering how this all really impacts on them.

Mr Murphy: They come in every year.

Mrs Fawcett: They come in every year, yes.

Ms Beall: Under the definition of the term "employee" as it exists in the bill at the moment, before any amendment to this process, it doesn't talk about seasonal workers but it talks about a person who is in an employment relationship, and when the employer, further through the act, determines how many employees he has for the purposes of determining the application of the act and his obligations under the act, it says the number of employees, first of all, for the purposes of determining if you're in the act, it's the number of employees you presently have or have had in the past 12 months. Those persons, those employees were captured by the old definition because they were employees the employer had within the past 12 months, so nothing has been added.

What has been clarified is the notion of a term employee, someone who is hired for three months, or a seasonal employee, someone who is hired to fill a position which becomes available on a regular basis, rather than dealing with an employer who has hired an employee for one day or two days, who would be captured by the old definition because there was no time limit; it was at any period of time. What we have done is clarified that for term employees it's a three-month period of time and for seasonal employees it's a position which becomes available on regularity.

In your example, the employees were caught by the existing definition and the existing provisions of the act, because it is the employees you have now or had within the past 12 months.

Mr Murphy: Can I --

The Chair: Come back to it. Mrs Marland.

Mrs Marland: Mr Chairman, do you know what is really intriguing about this? It's the fact that any of these amendments dealing with any section of this bill can come down to the most exciting part of the bill altogether, which is the one that says that the employees don't have to fill out their forms. What the employer has to do is give out the forms, but there's no obligation on employees to identify themselves in any one of the four target groups.

If I have my tobacco farms or fruit farms, whatever, and I'm using that as an example because those are the examples that have just been given, isn't it just going to be great when somebody comes along and says to me, as the farmer with that operation, "Aha, but you haven't identified anybody in those four target groups either this year for the three months or in the last twelve months, when you hired people for that contracted period of time," whatever the length of time is, and I'm going to say to you: "Oh, yes, but I handed out the forms. I couldn't help it if they handed the forms back."

What becomes really ludicrous is the fact that you're asking people to identify themselves, if I'm correct, in one of those four groups, if they fall into one of those four groups, and if the employee chooses not to, can I as an employer say, "They don't want to say they're women, but I know they're women"? The amendment that's before us even that we're actually discussing on the floor now, where do you save that falling flat on its face, where you're dependent on the employees to comply with the legislation in terms of identifying themselves?

Ms Beall: Mrs Marland, I could perhaps seek some assistance from the Chair with respect to the role that we should play here. We want very much to provide as much assistance to this committee on explaining at a technical level what the content is of the motions which are being presented by the government, and we certainly don't want to even begin to get close to overstepping our bounds and get involved in discussion and debate which should be more appropriately left to the members of the committee.

Mrs Marland: Okay, fair enough. I appreciate that comment and I accept it.

In dealing with the motion that's before us, we're talking about employers and employees and we're talking about the definitions and we're talking about them also falling into four target groups. My question is -- maybe it's not of a technical nature, and I'll accept it if you say it isn't, at this point in the debate -- if the employees choose not to be identified in one of those four groups, although they may well be, what happens to any of this in terms of the enforcement?

Ms Hewson: The employer will report the survey results.

Mrs Marland: It's their personal survey?

Ms Hewson: The survey that has taken place pursuant to the act in the workplace.

Mrs Marland: Where they've handed out the forms to the employees and the requirement is that they return them but they don't have to fill them out?

Ms Hewson: Correct.

Mrs Marland: Yes.

Ms Hewson: There is also, as you may know, a requirement for an information-education component before the survey takes place in order for employees to understand and make a more informed choice about how they will fill in the survey.

Mrs Marland: Right.

Ms Hewson: There's also a requirement for the employees to return to the survey form.

1440

Mrs Marland: So how are you going to help these people who have been given the kinds of jobs in the examples we've given, temporary help every summer on a fruit farm, brought in from other countries? How do you expect either the employer or the employee to deal with those individuals where in fact there may even be a multi-language problem? When you come to these categories that are in the amendment that is before us now, is any of it going to work?

Ms Hewson: Well, certainly --

Mrs Marland: Is the employer going to have to study different languages to convey it?

Ms Hewson: I can't speak on behalf of the commission, but there will be an Employment Equity Commission, and one of its functions will be to assist in having employment equity achieved. It may be a reasonable expectation that the commission will be able to provide some assistance in this regard to employers.

Mrs Marland: So you're going to provide translators all over the province.

Ms Hewson: I didn't say that.

Mrs Marland: Well, I guess I'll --

Ms Hewson: The commission is not yet set up, so I can't really say what assistance it will be, but there certainly is an expectation that there will be assistance.

Mrs Marland: So if all my apple pickers come from Mexico, then I'm either going to have to learn Spanish in order to convey the bill that governs my operation in Ontario -- it's very interesting, isn't it?

Mr Murphy: If I can follow up on this briefly, I guess if I'm thinking about an onion farmer from St Thomas or an apple farmer from Northumberland and I have a small farm, probably family-run, and come picking season I hire 65 -- it has to be over 50 for the private sector threshold, so some number over that -- to do the picking for those seasonable purposes, because of that the act applies.

Ms Hewson: Yes.

Mr Murphy: And I suspect it's quite likely that the workforce in the seasonal -- seasonal changes quite a bit each year, but none the less, because it then applies, I as the farmer would have to then do my workforce survey, if I could find the employees, or in theory do it when they're there for that short term, as well as their picking, then identify barriers, implement positive and now supportive measures and in theory, as a small farmer, go through all the hoops in the act, as a family farmer who hires 55 people to help with the picking for three or four or five weeks. Am I interpreting the way this is going to work correctly?

Ms Hewson: Yes, you are.

Mr Murphy: Thank you.

Mrs Witmer: Actually, my question was very similar to Mr Murphy's, and I regret the response that you've given, because it's quite obvious that any changes that have been made to the legislation are very disappointing. They really have made it far more difficult for everyone in this province to get a job and hold on to a job and the compliance costs have simply increased. I don't think the agricultural community really expected that this law was going to have the impact it possibly could have on them, given what you've just told us today.

The Chair: Okay, next?

Ms Hewson: Subsection 3(3.1) amends the bill by adding the following subsection:

"Related employers

"(3.1) Despite subsection (3), two or more employers who are declared by the Ontario Labour Relations Board under subsection 1(4) of the Labour Relations Act to constitute one employer for the purposes of that act are deemed to constitute one employer for the purposes of this act, regardless of whether the board's declaration was made in respect of all or part of the employers' workforces."

This subsection has the effect of having related employers found if they have been found to be related employers under an application to the Ontario Labour Relations Board. The amendment provides that if the labour relations board has made this declaration, then those employers will also be treated as one employer for the purposes of this act.

Mr Murphy: Just one question, if I can. I think this is a sensible recommendation. My one question is in essence on how it's going to impact if, for example, I am an employer with an evil intent to discriminate and I carve up my workforce in such a way as to avoid the application of employment equity. Not that I think that will happen and not that I hope it will happen, but assuming that in that one instance it does, the way I read this, in essence for the Employment Equity Commission or anybody who would like to get at that employer because that employer is intentionally doing something contrary to the law of the land, they'd have to wait for an application in front of the Ontario Labour Relations Board before they'd get the application of employment equity.

Ms Hewson: To consider the employer as a related employer, that is correct. Depending on what the employer has done, there may be an argument that that employer is an employer under the definition of employer.

The Chair: Next section?

Ms Hewson: This is new since your package from the weekend, and it is a motion to strike out subsection 5(2) of the bill. It is actually not left just struck out; it is moved to section 10, which deals with the review of the policies and practices of an employer. In that way, the seniority provisions can be dealt with in the context of the employment systems review or the policies and practices review.

Mr Murphy: We can deal with that in section 10.

The Chair: Yes.

Ms Hewson: The next section is a new section 5.1. There's a slight difference in the motion from what you have received on the weekend, because the motion now reads -- and I'll just read you the new one; there are some new words at the end:

"Plan to prevail

"5.1 An employment equity plan that is prepared, established or amended under this act prevails over all relevant collective agreements in the event of any inconsistency and to the extent of that inconsistency."

What has been added is, "and to the extent of that inconsistency."

The amendment provides that if a provision of the collective agreement and a provision of the employment equity plan conflict, then the employment equity plan prevails. It replaces the former subsection 14(5), which required the parties to the collective agreement to reopen the collective agreement to amend it.

Shall I go on?

The Chair: Hold on, please.

Mr Murphy: I just wanted one quick point. Actually, it's fairly technical. I know we're going to debate it slightly later, but you also referred to the collective agreement provisions in terms of seniority impact in section 10. I'm wondering, just because there could arguably be a confusion, whether this section should in fact refer to section 10 as an exception clause, because obviously seniority I think can be arguably a barrier to employment equity. Just for the clarity of legislative drafting, it may be better to refer to section 10. But I'll leave that to your thoughts.

Ms Hewson: Section 8 --

Mr Curling: I just wanted to ask, since it's so technical and moving so fast in itself, you said that if there is any disagreement, the tribunal would not have any ruling over what has been agreed upon within the employment equity committee, if you want to call it that. Is that what it's saying here?

Ms Hewson: I don't think so. I think that this probably will reduce the need to apply to the tribunal for that kind of ruling. What it will do is that the parties to the employment equity plan are the same as the parties to the collective agreement. If they agree in the employment equity plan to a provision that is different from the collective agreement, then that provision prevails.

This is a similar provision as is in the Pay Equity Act, which allows whatever the parties agree under pay equity, for example, to prevail over the collective agreement. In the same way, if there's something in the employment equity plan that is different, that conflicts with the collective agreement, then the employment equity plan prevails. There's no need to go off somewhere else to have that dealt with.

1450

Mr Curling: This is more or less taking away some of the powers of the tribunal then?

Ms Hewson: It avoids the need for an application. I don't think it would take away the power of the tribunal if it went to the tribunal, but it avoids the need for a tribunal ruling in some cases, yes.

Mr Curling: It seems to me some of the concerns are discrepancies they'd have, or disagreement. I think it was set up where the tribunal would deal with it. Am I understanding then that this wouldn't have to go to the tribunal, you'd have dealt with it before? Why wouldn't you send it to the tribunal and make it a consistent process in any disagreement they would have?

Ms Hewson: If the parties continue to disagree about how the employment equity plan needed to be developed, that issue would go to the tribunal. But presuming that the parties, the trade union and the employer, agree on the employment equity plan and on the provision of the employment equity plan, then that would override the collective agreement. They have agreed. There is no conflict in terms of employment equity and the plan. Therefore, it wouldn't be a good use of the tribunal's time to be just basically stamping something that the parties had agreed to. The point is to have the parties agree in a proactive manner on what steps will be taken to achieve employment equity.

The Chair: Mr Murphy?

Mr Murphy: Just one follow-up. I've seen similar things, for example on the Human Rights Code, where there's been a problem with the collective agreement contravening the Human Rights Code and arbitrators have applied the Human Rights Code and said, "The Human Rights Code is paramount law over collective agreements."

I'm wondering if you can see this provision being used, for example, if the employer and employee association, bargaining agent, whatever -- I guess it would be bargaining agent; it's a collective agreement -- agree that they're going to do something and don't really think about a particular impact on a collective agreement and a grievance being filed later and arbitration happening and this provision being argued. Can you see this as being a route by which arbitrators will end up interpreting employment equity and the Employment Equity Act through the collective agreement process and the dispute resolution process within collective agreements?

Ms Hewson: I guess I would respond by saying I don't think it opens the door that widely, but to the extent that there is a conflict between the collective agreement and the employment equity plan, I believe the arbitrator would have to look at the employment equity provision, because it basically would amend the collective agreement, and interpret it in that light.

Mr Murphy: I could see that arising, and we'll deal with it later, for example, in the seniority context where you'd have a dispute about to what degree seniority is a barrier, to what degree it doesn't apply to the Human Rights Code and then this provision. It could be any related provision giving rise to in essence a new avenue of appealing that conflict. I know the intent was to take it out of the Employment Equity Tribunal. I can certainly see it arising anew in the arbitration process.

Ms Hewson: All I would say is that it would be necessary for an arbitrator to have regard to the employment equity plan provision that changes the collective agreement in being able to interpret the collective agreement in the event of a grievance.

Mr Derek Fletcher (Guelph): Just on that point, a lot of collective agreements do contain the provision -- and when I say a lot I mean many main collective agreements in the private sector -- that federal and provincial laws supersede this collective agreement. In other words, that's exactly what this is saying, that it supersedes the collective agreement. That's already been bargained in many collective agreements. So any legislation is always up for interpretation. It's the same with any collective agreement clause; it is up for interpretation.

Mr Murphy: I don't think there's any dispute about that, that it's going to be up for interpretation. My view is just how many forums you're going to have these issues argued in and to what degree and where you go to have them resolved. The only issue is that I think this allows arbitrators under collective agreements a broader scope than might be intended.

Mr Fletcher: No, we don't see it that way.

Mr Murphy: I had two years of experience --

The Chair: Further questions to the ministry?

Mr Curling: But there may be areas, of course, where the collective agreement may conflict with employment equity, and that's the only one concern I have, that if it does, I presume the tribunal then would have to rule on that if any part of the collective agreement seemed to be conflicting with employment equity.

Ms Hewson: What would happen would be that the parties, a trade union and an employer, would disagree on how an employment equity plan ought to be written, for example, and that is an area of dispute that would clearly go to the Employment Equity Tribunal.

Mr Curling: My point is, though, you say that where they disagree, there's some dispute and it goes up. What if they don't and it still conflicts with employment equity principles?

Ms Hewson: If the union and the employer agree but it conflicts with employment equity principles?

Mr Curling: That's right.

Ms Hewson: There's an ability of an employee to apply to the Employment Equity Tribunal if the bargaining agent is not representing in good faith, is not developing the employment equity plan in good faith. The commission also will be auditing employers and could look into this aspect at that time.

Mr Curling: I'll deal with that in the amendments but I'm glad you raised an explanation there.

The Chair: Next section.

Ms Hewson: The current section 8 is struck out and is replaced by a new section. I won't read the new section to you unless you wish, but the fact of the new section is to add hiring to the list of areas that must be implemented and maintained for employment equity. This clarifies and makes consistent the language in the bill.

It also includes a technical amendment that will be dealt with later on in section 11. It's an amendment that permits more than one employment equity plan, basically, and it is in subsection 8(2), dealing with the employment equity plan that applies in respect of those employees. There are a number of technical amendments throughout the bill that have to be made in order to accommodate that change, which is a change from having one employment equity plan to more than one employment equity plan.

Mrs Marland: This is referring back to something that was said by someone earlier this afternoon. When you read your amendment to section 8, the promotion of employees, it says every employer "shall" etc. Is the interpretation of this that the promotion of employees then is only according to the employment equity principles? When we're dealing only with the act, of course, it's only with employment equity principles, but does it leave latitude for promotion outside the act?

Ms Hewson: Yes, I think so. I may be missing your point. I'm sorry.

Mrs Marland: Further down, you're talking about supervisory staff as well. The supervisory staff are accountable to the employer, so the employment practices within that organization that is covered by the act have to comply with this act once it's proclaimed. Does it permit promotion outside the act in terms of, for example, merit? There are other reasons for a promotion as well.

Ms Hewson: Yes. Promotions must occur in accordance with employment equity principles. It doesn't mean that only the designated-group members get promoted, for example, which is perhaps what you're suggesting.

Mrs Marland: It's very clear that in this particular amendment in section 8 the direction to the employer and the supervisory people is that these are the areas they are to consider. It would be nice if the bill had said "in conjunction with" some other basic areas. I just think it's unfortunate that it's not there.

In answer to another question earlier today you did say that the very fact that it's not there doesn't mean that it's not an option. But I think when this language becomes so specific in this bill, with the "shall," and it's a mandatory statement in the bill, in my opinion it's also limiting, which I don't think is in the interests of all employees.

So I'm just asking you if -- but technically speaking, you don't see that. That's fine.

1500

Mrs Fawcett: Just a point of clarification. You have now included the word "hiring" after "recruiting." Can you give me the technical difference between those two, as you see it, the words "recruiting" and "hiring"? If you're recruiting someone, it's for the purpose of hiring, right?

Ms Hewson: It might be considered that hiring is a part of recruiting. However, my understanding from the witnesses who testified during the last three weeks is that there was some concern that that was not as clear as they might wish, and certainly the policy intention has always been to apply employment equity principles to hiring as well as recruitment.

Recruitment, I think, perhaps is a broader activity. Hiring arguably is part of recruitment and it is the ultimate goal of recruitment, but just to clarify that both of these things are subject to employment equity principles.

Mr Murphy: Can I just follow up briefly, do you have any decision, interpretation, legal opinion that hiring and recruitment are different things?

Ms Beall: The reason the word "hiring" was added was to --

Mr Murphy: No, it's a -- sorry, I'll let you finish.

Ms Beall: It was just to ensure that the language in the bill is constant and consistent throughout to help reduce the litigation as to, "Why is this word here in this section and not in another section?" To ensure that there's a consistency of the language is the reason for this particular amendment with respect to the terms recruitment, hiring, employment and promotion.

When you get to the regulations, you get in more detail precisely what those obligations are with respect to those different stages of the employment process. Perhaps that would be of more assistance.

Mr Murphy: No, I understand that this is meant to reflect the addition of "hiring" early on. My question was quite specific: Do you have any legal opinion, legal ruling, board ruling, tribunal, court ruling that says there's a difference between recruitment and hiring?

Ms Beall: I don't have any particular cases or legislation that I have researched on that particular point.

The Chair: Next section.

Ms Hewson: Section 10 deals with the review of employment policies. It is struck out and replaced in its entirety. It's replaced with the following:

"(1) Every employer shall review the employer's employment policies and practices in accordance with the regulations.

"Purpose of review

"(2) The purpose of the review is to identify and enable the employer to remove barriers to the recruitment, hiring, retention and promotion of members of the designated groups, including terms and conditions of employment that adversely affect members of the designated groups.

"Seniority rights

"(3) For the purpose of this act, employee seniority rights with respect to a layoff or recall to employment after a layoff that are acquired through a collective agreement or an established practice of an employer are deemed not to be barriers to the recruitment, hiring, retention or promotion of members of the designated groups.

"Same

"(4) For the purpose of this act, employee seniority rights, other than those referred to in subsection (3), that are acquired through a collective agreement or an established practice of an employer are deemed not to be barriers to the recruitment, hiring, retention or promotion of members of the designated groups unless the seniority rights discriminate against members of a designated group in a manner that is contrary to the Human Rights Code."

First, this amendment divides the current section into four subsections, making its obligations clearer to read and understand.

Secondly, subsections 10(2), 10(3) and 10(4) add a specific reference to recruitment which must be specifically addressed in the employer's review of practices and policies. This is a matter of consistency.

Subsection 10(3) incorporates the current subsection 5(2) into section 10 dealing with employment systems review. This section provides that seniority provisions with respect to layoff and recall are deemed not to be barriers to the recruitment, hiring, retention or promotion of members of the designated groups. This section has been moved to section 10 because it isn't really an interpretation issue, as it would have been dealt with in section 5, but is really part of the review process where barriers are identified.

Finally, subsection 10(4) adds a new provision to deal with seniority rights that are not related to layoff or recall. This new subsection recognizes the need to determine whether seniority rights operate as a barrier to the recruitment, hiring, retention and promotion of the designated groups, contrary to the Human Rights Code. It obligates the workplace parties to review their collective agreement or establish a practice to ensure that they do not act as barriers to designated groups.

Mrs Witmer: It appears then from this section 10 that what you have done is to put seniority protection back into the legislation. It's obvious that what you're saying is that seniority prevails over merit, because certainly merit is not referred to and seniority is here. I wonder, if you're going to allow seniority back into the bill, did you consider at all allowing an employer to be excused from non-compliance when the reason is because of seniority? In order to be really fair and equitable to everybody in the workplace, did you consider that?

Ms Hewson: I know that was raised during the presentations, but it is not something the ministry chose to incorporate into this amendment. I think seniority provisions are those provisions that are in a contract between the employer and the trade union and that those will be dealt with, except for layoff and recall rights, in the context of the employment systems review where the parties have to sit down and assess whether those provisions are contrary to the Human Rights Code. If they are, they must address them in the employment systems review.

Mrs Witmer: But really what you've basically said is, "We're going to look after your seniority." You have responded to the unions, but you've not recognized merit as being important. I don't see any mention of that.

Ms Hewson: Not in section 10. Merit is not something that would be -- possibly it would be, I guess, depending on the employer. In looking at how an employer decided to promote, for example, and the employer decided it was on merit, in some cases there might be a need to look at what actually is required for those jobs and how those jobs are dealt with.

Mrs Witmer: But seniority wins the day.

Mr Curling: I want to go on to the same train that Ms Witmer is talking about. Employment equity is to identify systemic barriers. You have to admit the fact that seniority rights could be one of those that is a systemic barrier for promotion and hiring and what have you.

Having said all of that, you have then placed in here that we must deem it not to be a barrier. So immediately take that out of the argument; it's not a barrier. Then you proceed to say that if it conflicts in any way, whether it is contrary to the Human Rights Code -- bear with me a bit here.

1510

The Human Rights Code seems to be addressing individual discrimination, most of the cases. That's why we established employment equity and the commission here to deal with systemic discrimination. Now, this is systemic discrimination, seniority rights. The individual cannot take it to the Human Rights Commission because it is then already established that it's not a barrier, but it is a barrier. But the law here says it's not a barrier. My question to you now, the technical part, isn't this kind of contradictory in the sense of what employment equity should be about, conflicting?

Ms Hewson: I would try to answer in a number of ways. First of all, the Human Rights Code does address both individual and systemic discrimination in the sense that there is a section that talks about constructive discrimination, which is basically an adverse impact upon a group.

Secondly, I would say that there is no prohibition on an individual taking forward a complaint under the Human Rights Code alleging that a seniority provision discriminated against him or her.

Mr Curling: So this becomes very difficult then, because if individuals find that seniority is impeding them from moving up in the company, it is really not a systemic discrimination, so they could take to Human Rights. The fact is, they wouldn't know that unless they've gone all through that and said, "Well, as the legislation reads, it is not a barrier," so they have carried that systemic discrimination case right to the Employment Equity Commission and then found out that they will go to the Human Rights Commission.

Maybe the best thing they could have done then, since you're saying Human Rights can deal with both systemic and individual discrimination, is to go to the Human Rights Commission. However, we learned right through the hearing that if someone goes to the Human Rights Commission and finds out it's systemic discrimination, it would then say: "We don't handle this. You go to the Employment Equity Commissioner."

I'm really, really lost with this. What road do we go, seeing that you have put a wall there already with saying that seniority is not a barrier to employment equity?

Ms Hewson: I suppose that first, the one thing I would clarify is that as it's currently written, subsections 51(1) to (3) do amend the Human Rights Code. However, you're talking about there being a complaint to the Human Rights Commission that is stopped from proceeding because something is dealt with in the employment equity plan. Is that correct?

Mr Curling: Yes.

Ms Hewson: Okay. But I don't think that a seniority provision dealing with layoff and recall would be one of those things, because it will not be addressed in the employer's employment equity plan, pursuant to clause 34.1(2)(a).

Ms Beall: The reason for that is because it won't be a barrier. Your plan addresses barriers and because it's not a barrier --

Mr Curling: Yes, you've designated that. It's not a barrier, so you can't debate it.

Ms Beall: Well, no, it doesn't appear in the plan, so the Human Rights Commission could deal with it.

Mr Murphy: A barrier is not a barrier unless it's defined to be a barrier.

Mr Curling: Help me along with this because there are three areas of this where you say that "The purpose of the review is to identify and enable an employer to remove barriers to the recruitment, hiring, retention and promotion of members of the designated groups, including..." and they go on. It talks about the purpose.

Then it comes to the seniority rights and it says, "For the purpose of this act, employee seniority rights with respect to a layoff or recall to employment after a layoff that are acquired through a collective agreement or an established practice" -- sometimes established practices are discriminatory -- "of an employer are deemed not to be barriers to the" recruitment.

So therefore, a barrier now is not a barrier as far as seniority is concerned, because we have designated to you that when it was a barrier before, the easiest way to deal with it was to put it in a law and say it's not a barrier. So therefore, we can't debate it. Am I understanding this thing right?

Ms Hewson: I think there are two things. First, for the purposes of proactively sitting down and looking through policies and practices, there is no requirement on employers and trade unions to look at seniority provisions with respect to layoff and recall.

Secondly, with respect to all other seniority provisions, there is an obligation on employers and trade unions to assess the impact of those seniority provisions, and if they conflict with the Human Rights Code, there is an obligation, because of subsection (4), to identify them and then determine barrier elimination measures.

Mr Curling: I think the debate here -- we don't want to debate you, just defining what's happening here. I presume the government and you have established the fact that seniority is not a barrier so there's no argument itself to employment equity, and I say it flies in the face of the principles of employment equity.

I think the position that you have taken here, we have said it's not a barrier so it's not an argument, it's not a debate, but we would still state the position -- and I hope that maybe when it comes to amendment we could find a sort of wording to say that you have to admit the fact that it is a barrier and it does conflict; however, we will not proceed, we will regard this as something that is sacred and won't touch this. It seems to me that's where the debate is going to come to.

Ms Akande: I think the real discussion around this issue of seniority rights can somehow be clarified if in fact we're talking about a definition of what you understand by seniority rights. One of the situations that I used as an example, I know it has been said to me that that's not actually real seniority. So let me try that on again so that I can get an explanation.

An employer has to let staff go and then is later able to rehire. Included among the staff that are laid off, to use that term, are men and women and they are in order of the time that they have been let go, in order of seniority. Is that appropriate seniority if in fact the employer brings them back and decides through some Neanderthal interpretation that men require jobs more than women and so "I will bring them back in the order in which they have been laid off but the men first regardless of women's position because I feel they require their jobs more"? Would that be considered seniority?

Ms Beall: Usually the concept of seniority is the idea of the amount of time that you have been employed by the employer. Seniority, in general, starts to run from the day your employment begins and it continues to run for every day that you have worked. Seniority does not mean a distinction between how you count the number of days for a man and how you count the number of days for a woman. Seniority would be looking at the number of days any particular employee had been employed.

What you're suggesting is that an employer is not looking at the number of days a person has been employed; what you're suggesting is that the employer looks to the sex of the employee for the purposes of rehiring.

Ms Akande: He looks to the sex of the employee and he looks also at the order in which they have been let go, so the number of days he has been employed. Then in the case that that is the established practice of the employer, how is that addressed and by whom?

Ms Beall: The established practice part of this particular subsection deals with the established practice of the employer with respect to seniority after layoff and with respect to seniority with respect to layoff, not established practice with respect to things other than seniority with respect to layoff or recall to employment after layoff.

Ms Akande: All right, just to clarify this: The employer feels that he has an established practice, relative to seniority, for rehiring staff. You tell me, and I accept the explanation and appreciate it, that that is not seniority. Who addresses it and how? Is it left to the individual employee to say, "I'm being discriminated against; I go to address this with the EE commission"? Is it left to someone to say, "No, no, this is systemic," and is it somewhere in the person's plans and therefore I address it? How is it addressed and by whom, please?

1520

Ms Hewson: I think it's addressed in a variety of ways. First of all, it sounds like it would be a direct and intentional discrimination which could be the subject of a human rights complaint. That's one way.

Secondly, I think Kathleen Beall has explained that that is not a seniority practice that is protected within subsection 10(3). Therefore, it must be reviewed in the context of an employment systems review, and there is an obligation to consult or obviously, if it's a unionized workplace, an obligation to carry this out jointly. I'm assuming that in your scenario it's not a unionized workplace, although that's not necessarily the case. In that case, then the concerns of the employees must be addressed in the employment equity plan.

Ms Akande: So then it would be beneficial to have an employer's idea of his seniority plan as part of the plan that he or she designs for his or her workplace?

Ms Hewson: That's something I can't really comment on.

Mrs Marland: I do have my own question, but just further to what Zanana is saying because I think it's interesting: Zanana, you're looking at the possibility, perhaps, that the employer will create his own seniority system whereby he may in fact in a layoff situation let the women go first, which creates a seniority by the number of days or months -- maybe they're doing a layoff in the spring and they're doing another one in the fall or a year later, and by the very timing of their own downsizing, they create a seniority for the people who remain. Is that what you were getting at, partly?

Ms Akande: That's what I'm looking at, but I'm told that's not seniority, really.

Mrs Marland: It's the number of days before anyone's laid off that establish --

Ms Akande: But then the order in which they're laid off also relates to the amount of time that they've spent in the workplace. So it's not really --

Mrs Marland: No, but it's very interesting, the point that you raise.

The question that I have under this section 10 in your amendment, under the purpose of review under 2, it says, "The purpose of the review is...to enable the employer to remove barriers." And then it goes on to say, "including terms and conditions of employment that adversely affect members of the designated groups."

How will this section be enforced if, for example, the barrier to my employment is that I can't work during the day and the terms and conditions that adversely affect my ability to work are the fact that your work hours are during the day, or maybe the barrier is that I can't travel at night in the dark? I'm thinking of any number of people in any one of those four designated groups, particularly women and particularly people with disabilities, the availability of Wheel-Trans, for example, for people with disabilities.

Maybe I just can't get there because of a transportation problem in designated hours, so if the review is going to identify and enable the employer to remove the barrier, and the barrier is simply the hours of work that affect me as a member of the designated group, is this legislation going to require the employer to comply with my needs as an employee in that designated group?

Ms Hewson: There's an obligation on employers to have an accommodation policy, and this is the type of situation that may be accommodated, generally on an individual basis, depending on the specific needs of the employee. For example, an employer who has a disabled employee who can arrive at work at 9:30 because of Wheel-Trans may change the hours of work to accommodate that employee. That is now the case under the Human Rights Code as well.

Mrs Marland: Is there also precedent for argument that my sitters are only available from noon on or from 3 o'clock on? Maybe my husband works during the day and I need to work during the evening, but those are not the hours that particular employer needs me. Can I claim that as a barrier to my employment which under this section the employer might remove?

Ms Hewson: It's possible, but I wouldn't think it's very likely.

Mrs Marland: It says "including terms and conditions of employment that adversely affect members of the designated groups." If those terms and conditions of employment adversely affect me in a designated group, then it's adversely affecting me; it's providing a barrier against my employment. I'm just wondering how far you will carry the purpose of that review.

Ms Hewson: I suppose the answer to that is that it will depend very much on the specific place of employment. This is a proactive process that allows the employer, in consultation with employees or jointly with a bargaining agent, to identify barriers that broadly adversely affect the designated-group members and to decide on appropriate, reasonable barrier-elimination mechanisms as well.

Mr Murphy: I'd like to follow up on this section, because I really do think that the new sections are going to be the Trojan Horse by which employment equity gets defeated. Correct me if I'm wrong, but my understanding is that human rights tribunals have generally ruled that neutral application of seniority rights does not contravene the Human Rights Code.

Ms Hewson: I'm not aware of all the jurisprudence on that, so I'm not able to generalize.

Mr Murphy: You start on day one to acquire seniority rights by virtue of the length of your service with an employer. Are you aware of any case anywhere where that neutral application has been ruled contrary to the Human Rights Code?

Ms Hewson: I personally am not aware.

Mr Murphy: Do you know if the ministry in any of its manifestations is aware?

Ms Beall: It's a difficult question to answer because you ask if we're aware of any cases.

Mr Murphy: In Ontario.

Ms Beall: I guess it's my legal training that causes me to be cautious. I never answer "Do you know of any?" without leaving and going and updating and being sure of the research to answer it. Again, I ask the assistance of the Chair in this matter. We're here to explain to you what the content of these motions is at a technical level and to provide to you what they say to assist you in your debate when you get to it down the line.

The Chair: You simply remind them of it, that's all.

Mr Murphy: Yes, but to be fair, we have a provision in here which says "unless the seniority rights discriminate against members of a designated group in a manner that is contrary to the Human Rights Code." Certainly that amendment has to be backed up with some technical analysis, which presumably, I would hope and assume, would include analysis of the jurisprudence related to collective agreements and their compliance with the Human Rights Code. I think that's within the scope of the technical analysis of the bill.

I know it's a difficult spot for you. It is a bill that has its political overtones and it's difficult to do a technical briefing in that political context. I think you're doing an excellent job and I don't mean to put you in a difficult spot, but I do think this is an important issue, as is the whole bill. I want to know whether you as the ministry, the technical, non-political staff, are aware of any cases, or did you look at any cases in the drafting of this?

1530

Ms Beall: As you know, there is one case which is presently working its way through the courts dealing with a seniority provision and whether or not it is contrary to the Human Rights Code. It's also recognition that the Human Rights Code will prevail over this legislation.

Mr Murphy: In fact, that's the position taken by the Ontario government in that case, if I'm not mistaken, that the Human Rights Code will prevail. What that leads me to conclude is that this provision is useless, that "unless the seniority rights discriminate." If there's a neutral application of seniority rights that's an irrelevant section, because neutral seniority rights will win.

Ms Beall: First of all, I don't think this section is useless, because this subsection (4) is present in section 10; section 10 sets out your obligations with respect to reviewing the employer's employment practices and policies. Then, as Katherine mentioned earlier, as part of that review it will be necessary to look at seniority provisions other than the ones set out in subsection (3) to determine whether or not they are contrary to the Human Rights Code. It provides an opportunity for the employer and the bargaining agent to look at the provisions, and it calls them to look at the seniority rights they do have in the workplace and gives them an opportunity to consider them.

Mr Murphy: But that's entirely irrelevant to what happens once you've looked at them. I think the looking at seniority rights is an important thing to do, but the fact is that this provision means you're looking at them all you want, but ain't nothing going to happen because you can't change it because of this section; that's what we're focusing on. I have a series of questions, and one other one of the three or four more. Is there a technical reason that the Human Rights Code wording in (4) is not in (3)?

Ms Beall: There's no technical reason.

Mr Murphy: Is there any other reason that you are aware of?

Ms Beall: There's a policy reason.

Mr Murphy: Do you know what the policy reason is?

Mr David Winninger (London South): On a point of order, Mr Chair: I don't know why people here to give a technical briefing are being asked about policy considerations. That's a matter for the members to discuss during clause-by-clause. I think it's an abuse of the process. I think it's an abuse of the process to keep asking members of the bureaucracy to set out policy.

The Chair: I think your point's quite clear.

Mr Murphy: Clear but not correct, I'm afraid. I'm asking for a clarification of how this came to be.

The Chair: Mr Murphy, if you're getting into areas of policy, those are political questions, which is what Mr Winninger was getting at.

Mr Murphy: I'm just asking what it was. Presumably, if you're drafting a piece of legislation as a drafter, you're given, "Here is our policy; put it into legislative format," and certainly you'd have to have access to that policy to understand how it is that your bill's going to match the policy. All I'm asking is what the policy was that made those words necessary in sub (4) and not necessary in sub (3). I'm not asking for a defence. I'm not asking for a political justification. I'm just asking for an outline of the policy that resulted in this drafting.

The Chair: The ministry staff can respond to that based on whatever knowledge you might have, or they may not respond to it, because --

Mr Murphy: I don't intend to put them in a difficult spot. They may feel I am, and I apologize for that. If you can't say because you don't know, that's fine; I understand that. I'm just asking for what you understand it to be, and I will not hold you accountable for any absence or credibility in the explanation.

Ms Beall: I think it would be preferable to debate the question of how to deal with various aspects of seniority during your clause-by-clause debate.

Mr Murphy: I'm just trying to understand -- there may be a very valid reason that I'm just not aware of. On its face, it makes no sense to me. You're obviously privy to some reason why that wording wasn't included and I don't understand why it wasn't. I'm just asking, if you are privy to it, can you share it with me?

The Chair: And she said that can be part of the --

Mr Murphy: Yes, this Trojan Horse is well flogged by now.

I do have a follow-up. I'm just trying to outline a circumstance. Let's say I'm an employer who has been employing for a number of years; I have a workforce that has been around a long time. In these economic times I've downsized a little bit so I've laid off a few people, but because a lot of my workforce has been there 18 to 20 years and employment equity is a new thing, it's a primarily white male workforce. Promotions come up, as they do in due course because of retirements or other circumstances: people move. Seniority provisions generally provide that, with exceptional factors, the most senior person is to get the job, assuming that he or she is qualified.

My reading of this is that if I have a workforce that's primarily white male, the seniority provisions in the collective agreement will obligate me to hire the white males in my workforce regardless of the fact that that is clearly a barrier to employment equity because of the provisions that these amendments provide. Is that a fair summation of a circumstance, do you think, an accurate one?

Ms Hewson: No, I think that's correct, that layoff and recall --

Mr Murphy: I'm talking about a promotion.

Ms Hewson: That's right. Because it is only layoff and recall that are dealt with in subsection (3) and other seniority rights are dealt with in subsection (4), there is an obligation on the employer and the trade union to review those seniority rights with respect to recruitment, with respect to promotions.

Mr Murphy: But I've done all my analysis and I look at that situation. Seniority tells me to hire the white male in my workforce because that's who my workforce is. The principles of employment equity would say that you have to change the face of your workforce; that's the appropriate and right thing to do, and something we all agree with. You can look at the seniority rights, you can analyse them, but the fact that the person has served 18 years and is qualified for the job says you have to hire him, and this provision says that application of seniority is not a barrier to employment equity and you have to hire that person regardless of the fact that it does not improve by one iota the representativeness of your workforce.

Ms Hewson: It says that it's not a barrier "unless the seniority rights discriminate against the members of a designated group in a manner that is contrary to the Human Rights Code," and that must be assessed proactively between the trade union and the employer.

Mr Murphy: I understand that, but that's why I asked that question up front of whether you're aware of any decisions, because I think we had established that straightforward, neutral seniority does not contravene the code and will not be ruled to contravene the code, as is the expectation. That means that that person who's done their job, worked up through the system, will by virtue of the application of this section get the job, despite the fact that employment equity and all the nice words would say that we should look outwards, outreach. This would give that job to the 18-year employee. Am I right in that?

Ms Hewson: Not necessarily. It will depend on the outcome of the employment systems review.

Mr Murphy: You may be right. Explain to me how that works, because if that person is entitled to it by virtue of seniority, I don't see anything else in here that requires, obligates or necessitates hiring of anybody else for that job. In fact, I think it goes the other way: Seniority would require hiring that person, and this provision says that not only is that okay, but that's what you have to do.

Ms Margaret H. Harrington (Niagara Falls): Tim, you're talking about promotion.

Mr Murphy: Or retention.

The Chair: Anything further?

Ms Hewson: I could just add for my colleague that as far as we in the ministry are aware, there is no case in Ontario that has given blanket protection to seniority provisions of a collective agreement. That's perhaps some clarification.

Mr Murphy: The last question, and I apologize for taking up so much time, but I think it's an important point: The only provisions that allow you to really get at systemic discrimination in the Human Rights Code are the constructive discrimination provisions. Otherwise, it's really an individual-complaint-based system, if I understand it correctly. Really, the only way you're going to have that ruling about seniority arise out of the constructive discrimination, you'll look at the neutral application and whether --

Ms Hewson: One of the things they would have to consider as part of a determination of whether it contravened the code or not is section 12, dealing with constructive discrimination.

Mr Murphy: Right. I guess my view would be that -- and maybe you'd disagree with this as a matter of legislative interpretation -- a statement in an employment equity bill related to systemic discrimination that says seniority is not a barrier to employment equity would reinforce the argument in front of the Human Rights Code on a constructive discrimination complaint that seniority in that context is also not a barrier and, therefore, the only circumstance where you would have that complaint arise in the Human Rights Code is the kind of circumstance that Ms Akande pointed to where you have some kind of odd seniority system, where only the men get hired back or the women get laid off first, where there's some clear intentional discrimination.

Ms Hewson: I wouldn't see that the provisions of section 10 would affect a Human Rights Code complaint to the commission.

Mr Murphy: Mr Chair, if I may, I know it's been a long afternoon for you and it continues to be a long afternoon. Our witnesses generally before this committee were entitled to half an hour and I'd like to make the suggestion that perhaps we have 5 or 10 minutes for these witnesses to have a drink of water and take a little break.

The Chair: I agree. This committee will recess for eight minutes.

Mrs Witmer: Mr Chair, before you do, I'd really like to know what we plan to do today. Are we planning to conclude the technical briefings? How late are we sitting?

The Chair: These are questions I was actually going to ask the members informally outside. We could continue to do this formally.

Mrs Witmer: I think we should probably determine what our time line is.

Mr Murphy: Can we do it after the break?

The Chair: Let's do this after the break, shall we, Ms Witmer? We can come back to it. We can talk about it informally. Let's recess for eight minutes.

The committee recessed from 1542 to 1558.

The Chair: I'd like to call the meeting to order and simply point out, based on the informal discussions we've had on the matter of how long we will be here today, that we will end this at 5 either way with the technical briefing we're having. That means, therefore, that people, if they want to get through it, ask as few questions as possible. We will resume this committee at 10 o'clock tomorrow morning for clause-by-clause, okay? So in terms of the technical briefing, we'll continue until 5. I remind people that if you want to get to it, be as brief as you can, okay? Moving on to section 11.

Ms Hewson: Section 11 is amended to add hiring. This is again an amendment that is made for consistency. This is somewhat different from what you have received on the weekend, because it is separated out. Now there are two amendments for section 11 and it is basically a drafting difference.

Section 11(1)(b.1) is similar to what was discussed earlier in that it breaks out supportive measures specifically and requires them to be included in the plan.

Section 11(1.1) is a new subsection. It is somewhat different from what you received on the weekend in that the words "in accordance with the regulations" now appear. They did not appear before. The amendment now reads:

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

Mr Curling: Just a quick one on this. I wanted to say although we have gone through a lot of the others trying for explanation in the previous section, this one is quite a positive one and I'm glad they have changed to move to have different plans on this one. I want to commend you for this one.

Ms Harrington: Commending us, Alvin?

Mr Curling: Yes.

Mr Murphy: For listening to us.

The Chair: Okay. Moving on.

Ms Hewson: Section 11.

The Chair: Mr Murphy on that section.

Mr Murphy: Are the regulations that are referred to ready?

Ms Hewson: No. Subsection 11(2) is amended to reflect the fact that there may be now more than one plan.

Section 12 is amended in the same manner so that it reflects that there's more than one plan that is possible. The same amendment has been made for section 13.

Subsection 14(3) is amended to provide that if the employees of the employer are represented by more than one bargaining agent, the employer and the bargaining agents shall establish a committee to coordinate the carrying out of their joint responsibilities. That's the same.

The new subsection (3.1) states that, "The committee shall be composed of representatives of the bargaining agents and up to an equal number of representatives of the employer, in accordance with the regulations."

This allows for an up-to-equal representation on a coordinating committee, whereas before there was only one representative of the employer and one representative from the bargaining agents.

Mr Curling: Later on we may be dealing with that, but people who are non-bargaining agents are not included in this at all?

Ms Hewson: That's correct. Section 15 deals with those people.

Subsection 14(5) is struck out. That was the provision that dealt with the conflict between collective agreements and an employment equity plan. It's now been dealt with in section 5 as an interpretation issue.

Subsection 14(6) will be struck out and the following substituted:

"The employer shall provide the bargaining agent with all information in the employer's possession or control in respect of the part of the employer's workforce in which employees are represented by the bargaining agent that is necessary for the bargaining agent to participate effectively in carrying out their joint responsibilities, including the information prescribed by the regulations."

Mr Curling: Again, I just wondered, there were other concerns expressed about confidentiality. Is this the section that seems to say that everything will be shown to the bargaining agent now?

Ms Hewson: Everything that is necessary for the bargaining agent to carry out its joint responsibilities, including anything that's prescribed by the regulations. However, the amendment changes the section so that it is only in respect to the employees represented by that bargaining agent.

Mr Curling: So any sensitive information, would that be vetted?

Ms Hewson: The sensitivity of the information is not dealt with in this subsection. However, it is information that is necessary to the bargaining agent to carry out its responsibilities. It's a question of whether it's necessary or prescribed in the regulations.

Mr Murphy: There's no protection.

Mr Curling: Yes, I presume, as my colleague said, there seems to be no protection for the employer here if he has sensitive information. Who will deem it necessary? Who will deem it as being sensitive, according to the regulation?

Ms Hewson: The section requires that if it is something that is necessary to a bargaining agent to be put in a position to carry out its responsibilities to develop an employment equity plan, then the bargaining agent is entitled to that information.

Mr Curling: I know you say that's necessary to the bargaining agent. What if it is necessary to the employer that it should not be given because it would somehow interfere with its competitiveness?

Ms Hewson: If there's a conflict in respect to what information is provided, that conflict can be adjudicated by the Employment Equity Tribunal and the tribunal would have regard to this section.

Mr Murphy: Do you know offhand whether there is any common-law or administrative principle that applies to protect the confidentiality of information garnered by bargaining agents in this context? In other words, not to divulge to third parties for any other purpose, not to use it for any other purpose but the one in here. Do you know of wording to that effect in other acts?

Ms Hewson: There is wording to that effect in this act.

Ms Beall: There is wording to that effect in this act with respect to information received from employees, and that is that it is to remain confidential. We haven't provided any particular wording in this act with respect to the type of information you have spoken about, no.

Mr Murphy: If I have it right then, the employee is provided, quite appropriately, protection from the misuse of confidential information provided by way of the survey, but the employer has no like protection for confidential information that is necessary but is none the less confidential or may be sensitive in a competitive environment.

Ms Hewson: There is nothing in this section that deals with that.

The Chair: Next section.

Ms Hewson: Section 15: There is an amendment proposed to strike out the current section 15 and replace it with the following:

"Every employer shall, in accordance with the regulations, consult with the employer's employees who are not represented by a bargaining agent concerning the conduct of the employer's employment equity workforce survey, the review of the employer's employment policies and practices, and the development, implementation, review and revision of the employment equity plan that applies in respect of those employees."

This is somewhat different than what you received on the weekend because it now states "in accordance with the regulations."

The amendment clarifies that employers are obligated to consult only with non-unionized employees; for unionized employees, it is the joint responsibility, section 14, that applies.

In addition, the amendment also clarifies that the employer must consult on the survey and the employment systems review as well as the development, implementation, review and revision of the plan.

Mr Murphy: It may be dealt with later on, I'm not sure, but is there any mechanism in the amendments or the act or regulations that provides an opportunity for an employer or the employees to conduct the joint responsibilities and consultation in some sort of common body so that, in other words, you could have one employment equity committee that dealt with both unionized and non-unionized employees?

Ms Hewson: There's nothing that requires that. All that is required is a committee if there's more than one bargaining agent and consultation with non-unionized employees. There's nothing to prohibit that from happening either.

Mr Murphy: I guess my only thought is that the joint committee established by subsection 14(3.1) might preclude representation by other than bargaining agent representatives on such a committee. Do you read it that way?

Ms Hewson: I'm sorry. Can you just repeat it. What way?

Mr Murphy: Sorry, subsection (3.1): Our concern has been consistently that we think there should be more cooperation among unionized and non-unionized employees in a workforce in developing an employment equity plan. My concern is that there's nothing in here that does that, putting them together, and I'm just trying to get your interpretation of (3.1) to the effect of whether it might preclude membership by others than bargaining agents on that committee, or do you see regulations providing that opportunity in (3.1)?

Ms Beall: Indeed the regulations do set out that the employer and the bargaining agents can determine, in fact the coordinating committee can determine how the joint responsibility is to be carried out and leaves the flexibility within the workplace to determine what is the best way in which they carry out the requirements of the act.

Mr Murphy: If I remember correctly, and I may be mistaken, that's between the bargaining agents and the employer and not non-bargaining-agent-represented employees.

Ms Beall: There's nothing in that wording that would preclude them or prohibit them from providing for more flexibility.

Mr Murphy: And certainly nothing that encourages it, however.

Ms Hewson: Nothing that requires it.

1610

Mr Curling: The system we have in place, then, as I understand it, is that you have a joint committee or a committee with bargaining agents and the employer, and then you have another section that says, "We will consult with this other group." So it's also setting up two different systems within the workplace. We talk about employment equity. I see it that we're going to have two systems on how we treat different people in the workplace.

Is that as I understand it to be, that when you have the employment equity committee together, it sits at the table with the bargaining agents and the employer and then after that, whatever, before, you have another system that you call consultation which is separate and apart, that while we're trying to have an employment equity situation, we're going to have two kinds of systems of getting information or getting an employment equity plan together?

Ms Hewson: There are different requirements, depending on whether there's a bargaining agent that has the right to represent employees or whether it's a non-unionized workplace or there are non-unionized employees. As you point out, section 14 does deal with joint responsibilities. Only a trade union has a joint responsibility with the employer for the number of specified areas. Section 15 deals with the employer's obligation to consult with non-unionized employees. They are in separate sections and to that extent separate.

Mr Curling: My colleague had started that, that certain policies are set and you draft legislation accordingly. I was going to ask if there was any way it could have been drafted where you could have all the people sitting at the table, but it seems to me there's a set plan not to include those who are non-union, non-bargaining.

Mr Fletcher: Alvin, that's not what it is.

Mr Curling: You can have some questions responded to later on.

Mr Fletcher: Well, ask a technical question.

Ms Hewson: That may be something you will wish to address later on, during clause-by-clause debate of this section.

Mr Curling: I know it's for clause-by-clause. I just was wondering. It was set out really in order to have the committee put together, and this committee's deliberate in the sense that you have got to have the bargaining agent and the employer. That was the intent, not to include the non-bargaining or people who belong to associations but do not belong to the union to sit at the same table.

Mr Fletcher: No.

Mr Curling: Mr Fletcher, do you want to go --

The Chair: Mr Curling, you did make your point, however.

Mr Curling: No, but I keep on getting --

Ms Akande: You're asking a political question.

Mr Fletcher: You're asking a political question and you're going on and on.

The Chair: And they answered it.

Mr Curling: They seem to be so defensive, the Chairman in defence of the party; you're in defence of the party.

The Chair: Ms Witmer.

Mrs Witmer: Actually, I'll pass.

The Chair: So efficient we are. Next section.

Ms Hewson: Section 16 is amended to provide an additional subsection:

"(3) Every employer shall provide or make available to the employer's employees information in respect of this act and employment equity, in accordance with the regulations."

This amendment gives regulation-making authority to state what information the employer must give or make available to employees and how this must be done. It can provide a list of what information the employees are entitled to. It's in addition to the posting requirement which is currently in the bill.

Mrs Witmer: On this new section that now requires the employer to do something additional, what exactly is the employer being asked to do? How do they provide or make this available?

Ms Hewson: They could do it any way that is in the regulations.

Mrs Witmer: It's not sufficient to post it, obviously, because you've gone beyond that now.

Ms Hewson: It would depend on what is in the regulations. It could be posting and that may be the end of it according to the regulations, or it could be providing it in some other way. For example, the regulations provide for making it available through posting or -- I don't remember the exact wording -- making it available in some other method to employees.

Mrs Witmer: I guess this concerns me a little bit, because obviously it's a new regulatory power we're dealing with and it obviously is going to add to the workload involved, because it already states within the act that it shall be posted, so we're looking for something more and I'm not sure if it's really clear as to what needs to be done.

I'm a little concerned about the possibility that this could be expanded dramatically, if it's going to be in accordance with the regulations, which we know can at any time be changed by cabinet. You really don't have any additional information as to how that would be provided or made available?

Ms Hewson: The current draft regulations do provide for an alternative approach. This could be one of the ways.

Mr Winninger: It would seem to me that you do need a subsection (3) there, because subsection (2) says that information has to be posted in such a manner that it can be read by all employees.

Mr Murphy: That's policy, Mr Chair.

Mr Winninger: This is a question. I take it there may be employees of modest literacy skills or employees who are not sighted and would need another way of communication in order to understand the information that an ordinary person who can read and understand might be able to absorb.

Ms Hewson: That's correct, and this amendment could deal with that situation.

Mr Murphy: I want to follow up on the same discussion we had about bargaining agents and their use of information. My concern here is a very light concern, and I gather the response is going to be the same, that there's nothing here that provides protection to an employer for the use of, while it may be necessary but nonetheless confidential information given to the employees. I don't see anything in the regulations or here that provides protection for that. Am I correct?

Ms Hewson: There is no criterion of confidentiality.

Mr Murphy: And no protection for the misuse in this bill or in the regulations?

Ms Hewson: That's correct.

Mr Murphy: That's fine. That makes the point. Thank you.

The Chair: Next subsection.

Ms Hewson: Subsections 19(3) and (5) are amended by striking out "individuals" and replacing it with the word "employees". In this way, it is only employees covered by the act, falling within the definition of the act, who are of interest for modified requirements particularly.

Paragraphs 24(1)3 and 5: The following are substituted for the current paragraphs:

"3. An employment equity plan does not comply with section 11."

"5. The employer has not consulted, in accordance with section 15, with the employer's employees who are not represented by a bargaining agent."

This again is a technical amendment that reflects the fact that employers are permitted to develop several employment equity plans. Paragraph 5 reflects the earlier amendment to section 15 dealing with non-unionized employees for the obligation to consult.

Mr Murphy: Maybe I can ask a point of clarification from the Chair. There is a question I want to ask about a provision in this section which is not amended, and I wonder if I can ask a technical question of these people related to that section.

The Chair: Sure. Go ahead.

Mr Murphy: Subsection 24(4) of the bill: We heard a legal opinion or a legal opinion was provided to us in the committee that the absence of the word "hearing" or "may after a hearing" in subsection (4) meant that the tribunal could in theory make this ruling without a hearing after the commission does its job in the earlier parts, and I'm wondering, have you any opinion on that subject and do you agree with the opinion we received?

Ms Beall: The act does provide that the tribunal can establish its own rules of practice and this is set out in section 48, "The tribunal may make rules for the conduct and management of its affairs and for the practice and procedure to be observed in proceedings before it." It gives the tribunal the authority to decide that it's going to have these appeals heard by way of a hearing and then in that way you could provide for a hearing.

I understand that the opinion that was given, and correct me if I'm wrong, was that because a hearing isn't specifically referred to, then the application of the Statutory Powers Procedure Act, because it talks about where it is statutorily required that you have a hearing, would not therefore apply under that particular provision. The section of the Statutory Powers Procedure Act was just if it says there is a hearing.

It is correct that the requirement for a hearing is not found here; however, the authority for the tribunal to decide to hold a hearing is found in section 48. Of course, not only would the tribunal holding the hearing, by accordance with that section, but generally with the operation of the powers of the tribunal, the provisions of natural justice would apply in any event to ensure that a person would have a fair opportunity before the tribunal.

1620

Mr Murphy: Am I not correct that the triggering provision in the Statutory Powers Procedure Act is the requirement by statute or other common law to hold a hearing?

Ms Beall: Yes.

Mr Murphy: And that if there isn't a statutory provision to hold a hearing, then the Statutory Powers Procedure Act does not apply?

Ms Beall: As you said, it is by statute or otherwise by common law, so again, you fall back on to the natural justice requirements, depending on what is the matter that is before the tribunal.

Mr Murphy: Section 48, though, does not provide in any way an obligation to hold a hearing.

Ms Beall: That is correct. There is nothing stated there in section 48.

Mr Murphy: So that in theory the result could be that a tribunal could make a decision in reviewing a commission's decision under subsection 24(1) related to the survey, the keeping of the records, the plan. It could then review that and decide to tell the employer to do something, without giving the employer the right to a hearing.

Ms Beall: I would say that the actions of the tribunal in any event will be subject to the rules of natural justice, and not referring specifically to the Statutory Powers Procedure Act does not oust the common law with respect to natural justice.

Mr Murphy: Yes, but it may not require a hearing. It may only obligate that you have the right to file a written submission, and that's it. It may not obligate a hearing.

Ms Beall: The section doesn't statutorily require a hearing. You're correct.

Ms Hewson: Subsection 25(2) would be amended, again, to reflect the fact that employers can have more than one employment equity plan. Section 26 is amended in the same fashion. Subsection 28(2) is amended in the same manner.

Section 31 is amended by adding a new subsection, 31(4), which provides for the tribunal to decide not to deal with an application if it appears to the tribunal that the subject matter of an application is trivial, frivolous, vexatious or made in bad faith, or the application is not within the jurisdiction of the tribunal. In this case, it is provided specifically that no hearing is required.

Mr Murphy: If I can just follow up, why, if a hearing isn't required, would you have to say that it has to be without a hearing, or that it can be without a hearing?

Ms Beall: I'm sorry?

Mr Murphy: There's nothing in the rest of the act that requires a hearing, so why do you need in here a provision that says you can do it without a hearing?

Ms Beall: You're into the section dealing with applications before the tribunal, section 31. When you look through section 31, it says specifically that in an application before the tribunal the matter is first referred to an employee of the tribunal, and if it cannot be resolved, it shall be referred back to the tribunal, which shall hold a hearing.

This provides an exception to the requirement that if the application is one which meets the criteria, (a) or (b), it would not necessarily have to go to a hearing to make that determination.

Mr Murphy: But would not this section also apply to the matters in section 24 of the bill?

Ms Beall: No, because it deals with applications, and applications to the tribunal are a distinct procedure from appeals to the tribunal. You will note that when you look at the sections dealing with the tribunal in general, it talks about proceedings, which covers both applications and appeals, whereas section 31 deals specifically with applications.

Mr Murphy: Okay. So the result of that is then that the tribunal has the power here to dismiss frivolous applications but doesn't have the power under 24 to dismiss frivolous appeals.

Ms Beall: It doesn't have the power to dismiss frivolous appeals without a hearing, yes. One would suggest that would be because it's specifically referred to in one section. You know, the old question, if it's in one, what does it mean when it's not there in another?

The Chair: Next.

Ms Hewson: Section 32 would be amended to add the words "the respondent" after "the applicant." This is a technical amendment that would ensure that the respondent would be a party to any action before the tribunal. This is necessary because there may be cases in which the respondent is neither the employer nor the bargaining agent under the act.

Section 33 is amended by adding the following paragraph, 0.1, giving the tribunal the power to make an order in respect of subsection 10(4). As a result of this new subsection, it is clear that the Employment Equity Tribunal has jurisdiction to deal with all disputes that might arise between the parties dealing with subsection 10(4). This is the section dealing with seniority, which requires employers and bargaining agents to review seniority to ensure that it is not contrary to the Human Rights Code.

Mr Murphy: If I can just follow up on that, am I right, in your view, that the tribunal, though, would be limited by the wording in subsection 10(4) such that you could make an order with respect to the seniority -- let's say there's a conflict of interpretation between the employer and bargaining agent or agents about whether or not this was an issue of seniority -- no. I'm just trying to understand. My view is, I think, that the tribunal can't do anything that contravenes subsection 10(4).

Ms Hewson: Can't do anything that contravenes?

Mr Murphy: That's the provision that says seniority wins.

Ms Hewson: It's the provision that says employers and bargaining agents must review seniority provisions to see if there's a conflict with the Human Rights Code.

Mr Murphy: Yes, and that it wins if it doesn't. If it complies with the Human Rights Code, seniority wins. That's the effect of subsection 10(4). So what issue do you see coming before the tribunal in relation to subsection 10(4)?

Ms Beall: The dispute between the bargaining agent and the employer as to whether or not a seniority provision is contrary to the Human Rights Code. Because that's one of the things they look at when they do their review of the employer's policies and practices, and disputes between an employer and a bargaining agent can go to the tribunal to be resolved.

Mr Murphy: So the tribunal can then decide whether a provision contravenes the Human Rights Code.

Ms Hewson: Yes.

Mr Murphy: So it's possible then that the tribunal could have one interpretation and a tribunal under the Human Rights Commission could have a different interpretation. That's possible.

Ms Hewson: Yes. It's even possible that at the Human Rights Commission one board of inquiry may decide one way and another board of inquiry may decide another way.

Mr Murphy: Yes, but there's no appeal of a tribunal review except for jurisdiction. Am I correct?

Ms Hewson: There's a prohibitive clause.

Mr Murphy: Yes.

Ms Hewson: Section 33 is amended by adding a subsection respecting collective agreements which would read:

"Despite any provision of this act, the tribunal may make an order amending a collective agreement only if the tribunal considers that other orders are not sufficient, in the circumstances, to ensure compliance with this act."

The amendment limits the tribunal's power to amend a collective agreement. The tribunal can amend a collective agreement only if other remedies are not sufficient to ensure compliance with the act. This is a similar provision to what is now in clause 94(1)(d) of the Labour Relations Act, and it reflects the principle that third parties should not generally interfere with the terms of a collective agreement.

Section 36.1 is somewhat different from what you received on the weekend. It's the words "providing" and "provide" that are different. Section 36.1 would be added to provide that "No person shall knowingly provide false information on a certificate that is filed with the Employment Equity Commission under subsection 11(2) or 13(2)."

This amendment would make it an offence to provide false information on the certificate that employers must file after they have prepared an employment equity plan.

1630

Mrs Witmer: So obviously it's the employer who's going to be filing the certificate. What if, unknown to him, individuals had responded falsely on the survey?

Ms Hewson: That shouldn't be problematic, since the employer will be providing the survey results on the certificate. It's a question of providing survey results, not anything else.

Mrs Witmer: But there is this section here, providing false information. I think it is important, because obviously we don't want people to do that. Is there any section here that's been added that would also provide some sort of penalty for an employee who knowingly provides false information on a survey?

Ms Hewson: There is no subsection that has been added to provide that.

Mrs Witmer: Really, the only person who's going to be penalized is the employer.

Ms Hewson: If the employer knowingly provides information on the certificate that is false.

Mrs Witmer: What if somebody claims to be a female and the employer knows that that's a male?

Ms Hewson: What would need to be on the certificate are the results from the survey. So that is what the employer is providing.

Mrs Witmer: Okay, thank you.

Ms Hewson: Section 38 is amended. What this does is to include the offence of providing false information in the offences section.

Paragraph 41(1)5 is struck out. That amendment deletes the specific function of the commission working with bargaining agents to ensure that seniority rights are not barriers from the list of its functions.

Subsection 44(1) would be amended and would be replaced with a requirement for an annual report to be filed. The report shall include data and information in respect of the progress made towards achieving employment equity in Ontario. The amendment requires the commission to file an annual report and replaces the current subsection 44(1). It requires data and information on the progress of employment equity to be provided in the annual report.

Section 50 would be struck out and the following -- I won't read it all to you; it will be provided. If I may, I would just highlight things that are new or amended.

Interjection.

Ms Hewson: Oh, thanks. I just would like to draw to your attention, those of you who received something on the weekend, that paragraph 13 -- sorry, I don't know what this is. You'd better just explain it.

Ms Beall: Paragraph 50(1)13 is slightly different from what is in the package that was handed out on the weekend. Paragraph 13 now reads, "governing the content of employment equity plans in situations where an employer prepares only one plan and in situations where an employer prepares more than one plan." This again is an amendment as a result of the recognition that an employer may fulfil their plan obligations by filing more than one plan. It's a technical amendment subsequent to that.

Ms Hewson: The first paragraph is new. It allows the regulation-making authority to define a term if it is not already defined in the act. Paragraph 3 permits designating classes within a designated group. In other words, that permits the regulatory authority to define subgroups such as racial minority subgroups or disability subgroups.

Paragraph 7 is new and it permits regulations to be made setting out and governing the circumstances in which any of an employer's obligations under part III change or cease to apply because of a change in the number of employees in an employer's workforce.

Paragraph 8 is new. It allows regulation-making authority to be made governing and adapting the application of the act to an employer and a bargaining agent in the case of a purchase, sale, merger, acquisition or change of circumstance.

Number 11 is new. It permits regulations to be made respecting employers that have 500 or more employees, requiring them to collect additional information on subgroups.

Number 15 allows regulation-making authority governing the manner in which an employee and a bargaining agent shall carry out responsibilities and governing payment to employees who are selected by bargaining agents to carry out joint responsibilities. The payment is new.

Number 16, governing the composition of the coordinating committee and respecting the powers of the committee.

Number 18, regulation-making authority governing consultation by employers with employees and governing payment of those employees.

Number 20, governing information in respect of the act and employment equity that an employer must provide or make available to employees.

Number 23, requiring employers that have 500 or more employees to prepare reports containing subgroup information.

Number 24, requiring employers that have 500 or more employees to prepare reports containing salary information on employees, which corresponds to the regulations where there are salary quartiles that are required.

Number 25, designating classes of employers in the broader public sector and imposing more stringent requirements on the crown with respect to reports or other information. It allows for more stringent reporting requirements for the province of Ontario or for broader public sector or classes of broader public sector employers.

Mr Murphy: I want to ask some questions around subsection 50(1), the first paragraph, because I have great, great difficulty with this provision. I think it's frankly an outrageous provision because it essentially provides to the cabinet and the non-accountable political process the right to change the act on a whim. I have a real problem with this provision. I think it's an outrage, it's an abuse and it's an insult to every legislator regardless of party. That's my speech, and I want to ask you a question or two about it if I can. Can you tell me, have you seen a provision like this elsewhere?

Ms Beall: Providing a power in the regulations to define terms that are not defined in the act?

Mr Murphy: Yes.

Ms Beall: It's not that uncommon. I have seen it before. What it provides is that terms which have not been defined in the act can be defined by regulation. As I'm sure you know, given the number of questions you've asked about legal research, your ability to define a term within legislation is restricted to the extent that you cannot define a term by regulation in a manner that expands out the act. That's not what the regulation-making power with respect to definition is. It says that you can only define a term that is used in the act. The case law does say that this is not a power to define a term in a manner which expands out the act. You define the term in the manner with regard to what are the four corners of the act as it is written.

Mr Murphy: We can have a debate about what that's going to mean in practice. I think in practice that's going to mean that we are going to have that effect. We may have some litigation to draw back the boundaries, and it may be successful and it may not be.

I'm wondering, can you tell me where else you've seen it and what the wording was?

Ms Beall: I'm sorry, I don't have a list with me of other legislation where such terms are found and I don't have a list with me of the specific wording of those other provisions.

Mr Murphy: Not to put too much trouble on you, but if you have that somewhere, could you provide it? Later would be fine, if that's okay. Through the Chair to you, is that fine?

The Chair: Yes.

1640

Mr Murphy: The sections dealing with the new reporting requirements on larger employers, 50 or more employees -- and there are a few of them -- am I right in seeing that these new reporting requirements, at least in terms of what the regulation-making powers envision, provide a greater requirement on large private sector employers than they do currently on the government within the context of the bill?

Ms Hewson: There is no differentiation as to what sector. It's a differentiation purely on size and so, for example, since the Ontario government is larger than 500, that obligation would be on the Ontario government as well.

Mr Murphy: This would apply to all larger than 500 employees regardless of whether broader public or private sector. If I can just follow through on that. Subparagraph 24, for example, can you just clarify -- and if it is a repetition, I apologize -- what that means employers of that size are going to be required to file?

Ms Hewson: It's actually what's in the draft regulations now. This provides the regulation-making authority that would ground that in law. What is required in the draft regulations now is a report based on salary quartiles so there would be no obligation to identify the amount of salary, but the employer's workforce would be broken into four for reporting purposes and the employer would show where the designated-group members were in terms of the salary quartiles.

Mr Murphy: And that's --

Ms Hewson: That's currently in the draft regulations, and I'll give you the section number.

Mr Murphy: Right. Okay.

Ms Hewson: The enrolment.

Mr Murphy: That's fine. Going back now to paragraph 7, I have some difficulty understanding what it means and what situations the ministry envisages this applying to.

Ms Hewson: Now what happens is that if an employer's workforce grows, that is caught in the act. However, there's nothing for the opposite situation where there's a large permanent layoff, for example, and so the employer may have to comply with higher requirements, more stringent requirements, although the employer's workforce has dropped permanently to a size that would normally give the employer the right to do modified requirements or even not be covered by the obligations in the act at all.

Mr Murphy: So this provides the regulation-making power to do that for the downsizing but the increase in employees is provided for in the act.

Ms Hewson: Correct.

Mr Murphy: I guess I just find that an odd situation where two halves of the same circumstance in a way, one is dealt with in the act and one in the regulations.

Ms Hewson: That may be the case. It may be more difficult to define and you may need more specificity that may be more appropriate in regulations dealing with permanent layoff and so on, like in the Employment Standards Act, where there are very technical requirements around what is permanent layoff, and that is found in the regulations.

Mr Murphy: If I can follow up in that same subsection, you've talked about the situation of downsizing, for example, which would maybe cease to apply. I guess the assumption is change in that context would mean a downsizing change, where you moved from a large category to a small category, and ceased to apply altogether means you drop out of the floor of the act basically.

Ms Hewson: Yes.

Mr Murphy: Thank you.

The Chair: Mrs Marland.

Ms Beall: Mr Murphy, just to finish up, it's section 47 of the regulation that refers to the salary quartile aspect.

Mrs Marland: Mr Chair, as you know, I did have my hand up some time ago.

The Chair: Mr Murphy had another question.

Mrs Marland: No, that's all right. This is when we were still on section 44. I just have a question for clarification about the tabling of the report. "The minister shall table the report before the assembly if it is in session or, if not, at the next session." Isn't that rather self-explanatory? Why is it there? You can't table a report with the Legislative Assembly if it isn't in session.

The other question I have is, does that mean then that the report would not be available until the House is in session? Because it may well be that the Employment Equity Commissioner has something very interesting and very important for the assembly to know and may not wish to wait four or five months until the House is in session in order to table it. It's either redundant or it's controlling, and I don't know which.

Ms Beall: The drafting style with respect to the annual reports: It's required that you prepare one and file with the minister and that the minister tables it before the assembly. It makes the provision for what happens if the assembly is not in session at the time the minister receives it, that the minister must therefore file it at the next session as opposed to saying, "Well, this session's not in existence," and then it's unclear exactly when the minister is to file it.

Mrs Marland: Right, I understand that. But does it also mean that the report is within the control of the minister if the House isn't sitting? If I know that the Employment Equity Commissioner has now completed his report and I'm very interested in it, does that mean I can't obtain it legally from the minister until the House is in session?

Ms Beall: I'd have to look at the rules of the House in order to answer that question. I'm sorry, I don't know the answer.

Mrs Marland: Okay. Well, it's an important question because it may well be a very important report. I may not want to wait four or five months because it may in fact be another government.

Mr Curling: Exactly. It will be so.

Mrs Marland: Anyway, when we come to the regulations, I think instead of having these 27 descriptions of what the Lieutenant Governor in Council may do, which in fact, as we know, is the cabinet, we should have had one sentence which says, "Forget all the foregoing, forget what's printed in the bill, forget all these amendments we've spent all afternoon on because no matter what, the Lieutenant Governor in Council, therefore the cabinet, has omnipotent powers."

We've just spent three hours, I guess, almost, going over what constitutes many of the things that now this regulation tells me may not be so. I think we spent quite a time on the section of who was an employer and who was an employee. Now we get a section which says that the Lieutenant Governor in Council, therefore the cabinet, through regulations may designate persons as employees. This is pretty scary stuff. It's a bit like -- well, let me tell you the one -- I have a few that I'm very upset about.

The cabinet may set regulations "governing what constitutes membership in a designated group." What does this mean? Does that mean the four designated groups that we have may be expanded at the whim of the cabinet? Now, perhaps some of this, and I'm trying to be very respectful of our staff because I realize that -- it's not that boring, is it, Mr Chairman? I saw you yawning.

The Chair: There's no direct connection to what you said or will continue to say.

Mrs Marland: Well, I'm not interested in whether the government members are yawning. I'm interested in the fact that these regulations -- we are spending a lot of time on this legislation as drafted. We obviously are going to spend a lot of time on the amendments as presented both by the government and hopefully by the two opposition parties.

But then we come to these wonderful regulations which talk about "designating classes within a designated group." My goodness, haven't we come through decades of not wanting to designate people in classes? I think that's very unfortunate language. I understand what it is you're trying to say: You're really trying to say that there will be subgroups within designated groups, but then I think that's what you should say. I don't think you should talk about designating classes. I think that's going back to the Victorian era. To talk about "classes" as it pertains to people is very regressive and I think it's unfortunate.

1650

The Chair: You are asking for a comment on that?

Mrs Marland: Yes, certainly, by all means.

Ms Beall: It's my understanding that the term "classes" is the legislative drafting style of Ontario when referring to a subgroup or a subclass within a term that's expressed in the legislation.

Mrs Marland: Then I think it's time we changed it. The fact that we've done things in a certain legislative style doesn't mean it's right, doesn't mean it's carved in stone. This government and these two opposition parties may prefer not, through a legislative style, to continue the term "class" as it pertains -- here we're not talking about a class of job; we're talking about classes within a designated group, and the designated groups we're talking about are people. I don't think we should use the word "class" as it pertains to people. You can deal with this when I'm not on the committee after tomorrow, but I do think that's unfortunate language.

Mr Winninger: What word did you have in mind?

Mrs Marland: I'll work on something better than "classes." I will be happy to do that, because I think it's unfortunate language.

"Excluding employers by name or description from the broader public sector": Does this mean we're going to start looking at the broad public sector as it's referred to in what has already been drafted, and then through regulations we can change everything? There's so much latitude given to the cabinet through these regulations that as far as I'm concerned -- I'm not gung-ho on this bill the way it's drafted anyway, so it's not heartbreaking to me, but I think these regulations weaken the bill as it's drafted.

The Lieutenant Governor in Council, therefore the cabinet, can have regulations "designating persons as employees for the purpose of this act." As I said, we've already done that in whatever section it was earlier today.

I love this one, number 11: Mr Chair, I think you'll like this one, and I'm sure the parliamentary assistant will like this one, if he'd like to listen.

Mr Fletcher: I'll let you know.

Mrs Marland: Number 11, Mr Fletcher: "Requiring employers that have 500 or more employees to collect additional information to determine the extent to which members of classes within a designated group are employed in the employers' workforce." What are you going to do? Send out the SS? This is lovely stuff. If all else fails, through regulations they're going to be able to collect additional information.

What is very interesting, of course, is that in collecting this additional information, are they going to change the rules? Presently, and tell me if I'm wrong, the rules are that as an employee I'm going to be given a form to fill out and, as it says in subsection 9(2), "An employee has the right to decide whether to answer questions asked by an employer under subsection (1)"; in other words, as the explanation in the bill says, "voluntary giving of information," voluntary self-identification. This is all voluntary on the part of the employee. Aha, that's until we get down to where we might require through regulation the employer with more than 500 employees to collect additional information.

This is really ironic, because the pivotal point on which this bill is driven is the information from the employee, and it's voluntary, it's self-identification. If I choose as a woman not to be identified as a woman, it may be fairly obvious that I'm a woman or it may not be; it may be fairly obvious that I'm disabled or that I have aboriginal heritage or it may not be, but it's up to me to self-identify. Yet here in the regulations we're saying that we may require employers "to collect additional information to determine the extent to which members of classes" -- here's this wonderful word; subgroup, I guess -- "within a designated group are employed in the employer's workforce." What point is there to 11?

The Chair: Mrs Marland, I don't want to interrupt you; however, we agreed to close today at 5.

Mrs Marland: Yes, and we have five minutes.

The Chair: There are a few people who would like to ask, I presume, a few questions of clarification.

Mrs Marland: Maybe they could just answer this question then, because obviously if we're looking at requiring employers to get more information, as you are under 11 in regulations, how are they going to do it? How are they going to get more information if I don't choose to tell my employer which one of the subgroups of the designated groups I may belong to? Also, in 12, when you're saying that the cabinet may have regulations governing reviews of an employer's employment policies and practices, again the employer's policies and practices are dependent, to some extent, on the information from their employees.

I would like you to tell me how this is going to work. I think it's a mess, frankly. As I said, I think it's a wonderful bonanza for the lawyers in this province in order to make it work. Why are you giving all these powers under regulations which in fact wipe out some of the important sections that are already in the bill?

Ms Hewson: I think they don't wipe them out; they permit them to clarify and they allow them to change, only to the extent that is provided specifically in the regulation-making authority. Other than that, it would be ultra vires out of the jurisdiction: There would be no power in the regulation to be able to do something that was in conflict with the bill, except to the extent that is provided specifically in the regulation-making authority. I'm not sure that answers your question completely.

The Chair: No, but we'll continue another day.

Mrs Marland: I'll be very courteous and give up my questions, but I haven't got them answered. I wish we had more time to clarify these important questions I'm asking.

Mr Fletcher: Yes, I do like section 11, now that you ask. In terms of requiring employers to have additional information, it does allow for some tracking of where the company was and where the company is going, and if it starts to work for employers that have 500 or more employees, over the term I think it could work for employers who have fewer employees, in terms of seeing how their plan has worked, where they're going, their time lines and their goals --

Mrs Marland: As long as I tell my employer.

Mr Fletcher: Why wouldn't you?

Mrs Marland: I can give you all kinds of reasons why I wouldn't.

The Chair: I'd rather not encourage that debate; otherwise, we won't end it. Is that okay?

Mr Winninger: I'd just like to return for a moment, if I may, to Mr Murphy's speech concerning paragraph 1 of subsection 50(1) proclaiming his outrage. Quite frankly, when I saw it, I wasn't surprised because I've seen that paragraph before. I'm confident that the ministry staff, with the assistance of legislative counsel, can come up with other examples, and I wouldn't be at all surprised if at least one or two of those examples were statutes passed by Mr Murphy's government when in office.

Mr Murphy: Let me assure you that I never voted for one of them, and I never will.

Mr Winninger: Mr Murphy will, I'm sure, be very embarrassed and apologize to this committee for chastising the ministry staff.

Mr Curling: They didn't leave me much time, but I want to say that the staff have conducted themselves very well, because we've restrained ourselves very much over this piece of stuff here, this regulation. I know you did your best in drafting this, but still I stand by my colleague. I'm not surprised they would have brought out a regulation to make do for what they didn't do in legislation and hide behind it. But it's wonderful that you gave us all that information, and I'm sure you'll be around when we have amendments where we can put more emotion and hope to convince these people to make better legislation.

Ms Jenny Carter (Peterborough): I just wanted to comment on what Mrs Marland was saying about paragraph 11. You haven't been with us recently while we've been hearing presentations, and I just thought I should clarify that one reason that is there is that there were representatives of visible minorities --

Mr Curling: That you didn't listen to.

Ms Carter: -- who were very eager to have subgroups in the surveys because they felt that their group or some group might be more discriminated against than others. This is not some kind of fascist thing we're bringing in; it's something we're doing because the groups themselves ask that it should be done.

The Chair: A wonderful ending. We can end today.

Mrs Marland: In your opinion. They were asking to be called "classes" and "subgroups" within designated groups?

Ms Carter: They were asking to be able to specify much more tightly who they were, so presumably they would fill out those forms very eagerly.

The Chair: There will be an opportunity for members, obviously, in clause-by-clause to make their points if they want to, and informally, of course, and in the House.

I want to thank Ms Hewson and Ms Beall for assisting us with this technical knowledge.

This committee is adjourned until tomorrow for a clause-by-clause consideration at 10 o'clock.

The committee adjourned at 1702.