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

Wednesday 8 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:

Beall, Kathleen, legal counsel, Ministry of Labour

Bromm, Scott, policy analyst, Ministry of Citizenship

Clerk / Greffière: Freedman, Lisa

Clerk pro tem / Greffière par intérim: Bryce, Donna

Staff / Personnel: Joyal, Lisa, legislative counsel

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

WEDNESDAY 8 SEPTEMBER 1993

The committee met at 1020 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): We will begin clause-by-clause consideration of Bill 79. Are there any questions, comments or amendments and, if so, to what sections?

Mr Fletcher, would you please introduce the staff and then we can begin.

Mr Derek Fletcher (Guelph): With me today are Kathleen Beall, legal counsel with the employment equity legislation and regulations project of the Ministry of Citizenship, and Scott Bromm, who is also a policy adviser of the employment equity legislation and regulations project with the Ministry of Citizenship.

Mr Chair, the government has tabled its amendments.

Mrs Margaret Marland (Mississauga South): I thought the Chair would like to know that our PC caucus had tabled its amendments also.

Mr Tim Murphy (St George-St David): The Liberal caucus has also tabled most of its amendments. There are a few we still have yet to table because of the short time frame that we've had to put this together between the public submissions and the clause-by-clause. We're still working to make sure that we get the public viewpoint expressed in amendments and we're working on them and expect to have them shortly.

Mr Alvin Curling (Scarborough North): We did a good job too.

The Chair: I'm sure. We'll begin, Mr Fletcher.

Mr Fletcher: Let me first say thank you to the members of the committee and to the people who presented in person and also sent their briefs to this committee. Without their input, without their knowledge of the situation, I don't think the government and the opposition parties could have come to this point where we could have some amendments to the legislation.

Let me begin with the preamble.

I move that the preamble of the bill be amended as follows:

(1) By striking out "It is caused by both systemic and intentional discrimination" in the third, fourth and fifth lines of the second paragraph and substituting "It is caused in part by systemic and intentional discrimination in employment. 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."

(2) By adding at the end of the third paragraph "and the provision of the opportunity for people in these groups to fulfil their potential in employment."

The Chair: Normally the Chair repeats the amendment for the record. I would like to ask if there is unanimous consent for the Chair to dispense with the reading of the amendments. Very well, good.

Mr Curling: For now.

The Chair: For now. Thank you. Mr Fletcher, then, to speak on the amendment.

Mr Fletcher: Yes. The preamble, as we heard from many groups, was thought to be not as forward-thinking and as positive as it should be and, after listening to the deputants, we decided that they were right. The amendments we are making are presenting a preamble that is not only forward-thinking, in that the economy and business is going to benefit from employment equity, but also it recognizes that some people, because of being in the designated groups, have lacked employment opportunities even though they do have the merit to do the jobs they've been applying for. The government is proud to implement a preamble to a piece of legislation that is going a long way to help the people in the designated groups.

Mr Curling: I want to at least thank the government members for attempting to make it a bit more positive in this area but, as you know, the expressions of the presenters were quite constant in the fact that it was quite negative and seemed to be a preamble that was adversarial. I don't think they have got the real flavour of what it's all about. I still feel it's not positive enough. In moving, we have to move positively and move forward. We will not be supporting this amendment. We have our own amendment that we think will reach to that goal of making a very positive and a very inclusive preamble of all people in Ontario.

Mrs Elizabeth Witmer (Waterloo North): I'd like to focus on the preamble. As I have always indicated, I have felt very strongly that the preamble needs to be a very positive statement. It needs to be a message which tells the people in this province that there will be equal employment opportunity for all individuals at all times.

I'm rather disappointed by the preamble because I really do believe that it's missed the point. I still think the content does not capture what it is we're looking for and the Ontario PC Party does have an amendment which we feel would more appropriately capture the spirit of fairness and equity in employment equity and so we will be putting that forward at that time.

Mr Murphy: I want to say that I don't think this amendment to the preamble really does capture the spirit of what we were hearing and what our caucuses heard through the course of these public hearings.

The parliamentary assistant talked about a preamble being forward-thinking and positive and I think that should be the objective of a preamble. He also said we have to look at the fact that economy in business will benefit by the implementation of employment equity and I agree with that idea. The problem I have is that none of that is reflected in the preamble, either as it exists or as it would be changed by the amendment.

There is, for example, no reference to the very point that he made about economy in business being benefited by the implementation of employment equity. A fine point. Perhaps his own words should be reflected in the preamble; his government's amendments don't do that.

I think what we try to do in a preamble, in a piece of legislation, is obviously to set the context for the provisions that follow. I think it also has a political purpose, especially so in the context of employment equity.

Part of our job, I believe, as legislators is to sell what I think is a valid and important effort, one that our party has always supported and continues to support, and part of the selling of the law should be in the preamble. My concern and our caucus's concern about this preamble has been, and continues to be, that it is a finger-pointing preamble, that it blames, that it looks backwards and that it doesn't look forward.

Our caucus has proposed an amendment which attempts to address both how the problem of systemic discrimination in particular arose, and then tries to address how and why, more importantly, this bill, as we hope to amend it, would address some of those concerns and also how it would be beneficial, as the parliamentary assistant said, to the economy, to business, to all of Ontario.

We think that, rather than pointing the finger and laying blame, the important function of the preamble is to say to people, "This is a good thing. You should buy into it and here's why," and to sell it not just to designated groups, but to others in our economy who I think will benefit in the long run by the improved access by designated groups to jobs in our economy, to the contribution that they will make, that their skills will make toward the success of our economy. I think those are the points we need to make.

I think the absence of the mention of merit -- as I went through with the staff yesterday in terms of the technical aspect of it -- as a principle that we want to and continue to need to apply to decisions related to hiring, retention and promotion is a really fatal flaw to the preamble and a fatal flaw in selling it to those people who want to see it as a way to benefit all of Ontario.

My friend Mr Winninger, during the course of the public hearings, made a very fine statement when he said -- I will be paraphrasing and for that I apologize, but he said: The purpose of this bill is to eliminate irrelevant and unimportant and discriminatory factors so that the people can be judged on their true merit when they're faced with decisions of hiring, retention and promotion in employment. I commend you on the statement. I think it was a statement of the purpose of the bill that could not have been better stated. I wish your own government, Mr Winninger, had taken heed to your fine words and put them right in the preamble, but it hasn't and that's unfortunate. I hope your influence in other areas will be better. I'm not saying that as criticism. I'm sure you lobbied hard and strong for your words.

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We've tried, in the wording we're proposing, to reflect Mr Winninger's point because I think it was a valid and good one and our wording for our amendment to the preamble picks up on Mr Winninger's very good point and, in fact, the parliamentary assistant's fine point about the benefit this will have to economy and business and tries to put those in the wording. It may not be perfect wording, and we're prepared to accept whatever kind of amendments to the particulars of our amendment the government would care to see and that would improve it. But we think our amendment will strike that balance between being positive and forward-looking, identifying why we need the bill and selling it to the public. I think we're going to have to oppose the government's amendment and its preamble and support what I think is a better compromise -- the motion we've put forward.

The Chair: Shall the amendment carry? Carried.

Mr Fletcher: Again, to the preamble, I move that the preamble of the bill be amended by adding after the third paragraph the following paragraph:

"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."

Again, this amendment reflects the positive aspects of employment equity in terms of both fully utilizing the people from the designated groups and also in maximizing the amount of productivity and competitiveness there is in Ontario's workplaces today.

Mr Curling: Here is an amendment that has captured the intent of what employment equity is all about. I feel that the government had listened a bit. If only it were consistent at the beginning, in the initial stage. They got it, I think, in the second amendment here. We will be supporting this part of the amendment and we hope that having done so, the consideration, as my colleagues put it so eloquently, when our amendments come from the other part of the preamble they will be supported. But we will be supporting this aspect of it.

Ms Zanana L. Akande (St Andrew-St Patrick): It's my feeling that in actual fact our goal is not the working towards the elimination of discrimination in employment. Our actual goal is the elimination of discrimination in employment and so it would go on in terms of increasing the fair employment of members of designated groups. I think it's really a friendly change and if people would accept that, I would certainly be willing to put that forward. If you want it more formally struck, then I will do that.

What I'm suggesting is that instead of saying, "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," I would be changing that to, "The people of Ontario recognize that the elimination of discrimination in employment and increase in the fair employment of members of designated groups will benefit all people in Ontario."

The Chair: Are you soliciting support for that or waiting for others to instruct you or do you wish to make an amendment to the amendment?

Ms Akande: I thought it was a friendly amendment and if in fact it is acceptable to the group, I will go that way, unless people feel that it must be more formal.

Mrs Witmer: Do you want to read that?

Mr Murphy: I need just to get a better sense of it.

The Chair: Others will speak to that and perhaps we can come back to you to make the amendment to the amendment, unless the mover wishes to incorporate that.

Mr Fletcher: Not at this time.

The Chair: All right. We'll get some discussion to see what the other members want to say to that for clarification and then we'll come back to you to make the amendment at that stage.

Mrs Marland: Did the parliamentary assistant say he didn't wish to --

The Chair: He did, not at this time.

Mrs Marland: He does not want to incorporate --

Mr Fletcher: I want to hear the debate on it.

Mrs Marland: Excuse me, I want to be clear that the parliamentary assistant just said he does not wish to incorporate Ms Akande's amendment at this time. Is that what you said?

Mr Fletcher: I just want to see it in writing.

The Chair: Ms Akande, would you like to repeat the wording for an amendment to that amendment.

Mr Fletcher: I'd like to see it in writing.

Ms Akande: All right. Do you want me to clarify it?

The Chair: She can read it and then write it out.

Ms Akande: The people of Ontario recognize that eliminating discrimination in employment and increasing the fair employment of members of designated groups will benefit all people in Ontario.

Ms Jenny Carter (Peterborough): You've added some words.

Ms Akande: No.

Ms Carter: But you have.

Ms Akande: And increasing the opportunity of individuals to contribute in the workplace will benefit all people in Ontario. I'm sorry, I omitted some.

Ms Carter: Okay. You changed the wording.

The Chair: What you've changed is, you've gotten rid of "working" and instead you said, "eliminating discrimination in employment," and then it continues.

Ms Akande: And increasing the opportunity of individuals to contribute.

The Chair: That stays the same.

Ms Carter: So that's the only change.

Ms Akande: I will write it out.

Mr Murphy: You're making one small change.

Ms Akande: I'm really making one small change, and it's really a grammar positioning. The goal isn't to work towards.

Mrs Marland: That's why I was surprised he didn't accept it.

The Chair: My question to Mr Fletcher is this: Do you wish to incorporate that into your motion or should Ms Akande move an amendment to your amendment?

Mr Fletcher: If I can read it. I just want to read it so I can understand exactly what it's saying.

The Chair: We'll pause to bring that to you.

Mrs Witmer: Perhaps we could continue with the discussion.

Mr Curling: We can't, because we don't even know if it's a friendly amendment.

Mr Murphy: It's not even on the floor.

Mrs Witmer: Let's continue with what is here.

The Chair: I suspect you could speak probably to the whole thing, including the possible amendment.

Mrs Witmer: Right. We might as well keep going.

I could certainly accept that change. It's really more a grammatical change than a change in meaning. The intent is certainly still the same. Yes, I am certainly very supportive of this addition to the preamble. I sincerely wish that the government had shortened the preamble, because this is the type of terminology that it needed to be using. It is very positive in intent rather than focusing on the sins of the past and being very accusatory. Certainly I think it will benefit all people in the province of Ontario, this type of a statement.

Mr Murphy: Let me say that I think the amendment is a sensible one, and I think we can support both the amendment and the preamble. I also agree with my colleague that this is part of getting towards what the public presenters were trying to tell us about, what the purpose of the preamble is. However, I still say that the government's total amendments to the preamble only give us a three-legged stool, and that fourth leg that's going to hold the piece up, talking about merit, talking about the best-qualified person and about the importance of that as this selling job, is missing. As long as it's a three-legged stool, ain't no one going to sit on it.

I'm still concerned about the absence of that aspect of the preamble, but I think Ms Akande's amendment improves it. I hope she continues to improve the government's amendments, because they need that kind of keen insight through the rest of them too. I know she has the skill from her background as a principal to continue to do that and I hope she will. We'll of course support her amendment and this amendment as well.

Mr Curling: It's a glitter of light.

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Mr David Winninger (London South): To express my support for the friendly amendment that Ms Akande has put forward, I think it more accurately reflects the pith and substance of this act than the present wording.

Ms Margaret H. Harrington (Niagara Falls): Just briefly with regard to what Mr Murphy said, in the clause that we have just voted on it does say, "People of merit are too often overlooked or denied opportunities because of this discrimination," so I believe that is an important statement to have in the preamble.

The Chair: Mr Fletcher, do you wish to incorporate that as a government amendment?

Mr Fletcher: Just a minute. I have a few things to say also, Mr Chair. First let me say to Mr Murphy that it's too bad you weren't born out in the country where you know what three-legged stools are for and how they support people.

Mrs Marland: They're needed for milking.

Mr Fletcher: He's obviously never milked a cow, has he, Margaret? Boy, these city boys. I don't know.

The Chair: Mr Fletcher, what I would ask you to do is withdraw the original motion and then re-present it with the inclusion of Ms Akande's wording.

Mr Fletcher: Why not withdraw Ms Akande's --

The Chair: Procedurally, Ms Akande actually had not made an amendment to the amendment.

Ms Akande: I didn't make a formal amendment. I just suggested something.

Mr Fletcher: I will withdraw our amendment and agree with Ms Akande's amendment.

The Chair: Then, Mr Fletcher, re-read the motion with the inclusion of that word.

Mr Fletcher: I move that the preamble of the bill be amended by adding after the third paragraph the following paragraph:

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

The Chair: Shall the amendment carry? Any opposed? Seeing none, we move on to other amendments on the preamble. Liberal motion.

Mr Curling: I move that the preamble of the bill be amended as follows:

(1) By striking out the first and second paragraphs and substituting "The people of Ontario recognize that systemic and intentional discrimination has resulted in employment opportunities being allocated and employment decisions being made on non-job-related factors; some individuals are recruited, hired, assigned, paid, and promoted based on factors not relevant to merit and qualifications. The people of Ontario further recognize that implementation of employment equity and the elimination of systemic and intentional discrimination will increase the extent to which employment in Ontario is based upon merit and qualifications and thereby improve the productivity and efficiency of Ontario workplaces to the benefit of all people in Ontario."

(2) By adding at the end of the fourth paragraph "and to ensure that every person is guaranteed equal access to employment opportunities."

Mr Winninger: Point of order, Mr Chair: I only counted three paragraphs in the preamble. I wonder if Mr Curling could clarify where the wording --

The Chair: "By adding at the end of the third," I guess is what he meant.

Mr Curling: Oh, sorry, the third paragraph. Thank you very much.

As we said before, the intent of this employment equity legislation is to include all people. It's inclusive legislation, not exclusive legislation. The preamble then recognizes there are certain people who have been shut out because of systemic barriers and other discrimination, and that in removing these barriers, all people in this province will be able to participate effectively and be of benefit to the economy, benefits on both sides: for the employer and also the employee. We feel that moving in a positive way will bring more cooperation to all people and therefore make it more effective. Again, as my colleague had stated, a preamble should be setting the stage of a legislation and getting the sort of essence of where we're going and where we'd like to go and carrying all our population, all our people together on this. It is not confrontational. It is friendly and it is cooperative.

All during the hearings we heard people coming in and say, "Those who have been shut out of this to perform in the economy and to perform in this province do have the qualification, but because of the systemic barriers and discrimination, they are not able to do so." We strongly believe, as a caucus, that if you remove those barriers and allow in all those people who are designated to perform, they can perform just as well as anyone else on their merit. They're not asking for any favours. They just ask to be treated in a fair manner and to move those barriers, and we as legislators must put laws in place to move out those barriers so they can perform on their merit.

I think the motion itself reflects that we are confident of the people we have in this province to perform effectively if we move those barriers. That is why I would ask members on the other side, the government side, to support this amendment. We would then make it much easier, as we go along in the meat of the bill later on, because we want it to work.

Mr Gary Malkowski (York East): I would like you to expand a little bit on what you mean by "to make sure that every person is guaranteed equal access to employment opportunities." By "every person," do you mean members of the designated group: aboriginal persons, people with disabilities, racial minorities, or are you saying all? Could you just expand on that for me?

Mr Curling: Well beyond that. I'm saying the four designated groups, other areas like the francophones, gays and lesbians, the white males who have come forward and felt that this has really shut them out and after this bill is in place, "Can we perform equally with everyone else?" We're saying yes, but what the bill is intended to do is to remove those barriers that restrict those designated groups that we said have been subjected to systemic and intentional discrimination so that all people can participate.

The disabled have come forward to us and said, "If we have access to the workplace, barriers are removed, we can perform just as good as anyone else." We want to tell the able-bodied white males or anyone else that they too can participate, must participate and should participate in our economy. It should not be the intention to say that they are shut out, because what we're going to do is set up a them-and-us kind of situation and a confrontational situation. So when I say "all," I mean all residents of Ontario.

Mr Malkowski: In other words, do you want to broaden it so that we're not just looking at the four designated groups?

Mr Curling: No. I said recognizing that these designated groups are being barred from the workplace because of systemic discrimination and intentional discrimination, and having this law to remove those barriers, they can compete like anyone else. In other words, it's more inclusive than seeming to be excluding the others and saying, "Step aside, and these designated groups will only be employed." We don't want to give that intention. We're saying there is systemic discrimination within the workplace and even outside the workplace which has not really been addressed properly in this bill, in transportation, and I don't want to get into that, day care etc, which your government has not really addressed properly, but to move those barriers so that all people can participate.

Ms Akande: My friend in opposition --

Mr Curling: Thanks.

Ms Akande: -- has spoken previously, as his colleagues have, about the need to look forward rather than to look backward, the need to remove oneself from the assigning of blame and to move on, and yet I find that at the beginning of this submission you have in fact implied blame in an attempt, I think, to look at cause, and it's for that reason that I think that you're speaking almost in contradiction to what you yourself have put forward as being the way in which we should go.

Secondly, I really do not see what the second part of the first paragraph does that is different from what has been done with different words in the government submission. So for that reason, at least at this point, I will not be supporting it.

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Mr Curling: Can I respond to this?

The Chair: No. Going through the list, Mr Fletcher.

Mr Fletcher: It's okay. Ms Akande said what I was saying.

The Chair: Ms Harrington.

Ms Harrington: I'd like to say, first of all, that Mr Curling's intentions and his aspirations are excellent and most admirable. I'm sure we would agree with what you are trying to say. What I would point out is that, because this is a preamble to legislation, the wording has to be extremely carefully laid out.

Looking a little closer at what you have said, I see here the word "guaranteed" and I see the word "productivity." Also, in the fifth or sixth line, you have "recruited, hired, assigned, paid and promoted." These are not the same wordings that we have used in the rest of the bill, and it's very important that it be consistent. So at this time I'd like to call upon the parliamentary assistant or staff, just to see if from their point of view there would be a problem in some of the detailed wording in your amendment.

The Chair: I'm sorry. I think Mr Bromm was the only one who heard the question. Did you want Mr Fletcher to respond to it, or staff?

Ms Harrington: I just wondered if they could have a little closer look at that wording and see if it is consistent with the bill.

Mr Fletcher: Okay, I'll defer that to Mr Bromm.

Mr Scott Bromm: I hate to play tennis, but I think it's probably something that's better answered by the lawyer. To paraphrase for Kathleen, because they were having a discussion, I think the question was whether or not the use of words in the preamble that do not then arise in the legislation itself, such as "assign" and "paid," would raise any problems with respect to the interpretation or the application of the bill itself later on. Is that the question?

Ms Harrington: Yes.

Ms Kathleen Beall: I think it would be more fair to speak at a general level. When one drafts legislation, one tries to use language consistently throughout the bill to help with interpretation by the courts if the bill ever becomes litigated. Generally, when one has a lawyer who gets involved in drafting a bill, that's what one looks at, as to whether language is being consistently used throughout the bill.

Ms Harrington: I'm wondering if there would be a problem with the word "guaranteed" being in there.

Ms Beall: I'm just looking for exactly where it is. Oh yes, "guaranteed." I'm hesitant to give you a legal opinion so soon after the question's been answered, but I think it would be fair to say that if one is going to use words which are absolutes or words which imply rights or directly confer rights, one must stop and carefully consider whether or not one precisely wishes to confer or guarantee a right before one actually puts that language in the legislation. That is one thing to be thought about.

Ms Harrington: So I am hesitant about some of the wording here.

Mr Murphy: I want to follow up on a few things, and this I think adds the fourth leg to the stool. Unlike Mr Fletcher, who wants to place certain people on a three-legged stool near the back of the cow, I prefer to have them on a four-legged stool somewhere safer, and I think that is the fourth leg. The merit principle is enshrined here.

I understand the concerns of Ms Harrington, and I think that in fact the only word that is missing from the language otherwise found in the bill is "retained." I think people know what "paid" means and I think people know what "assigned" means. I think the intention here is to talk about some of the other kinds of decisions in an employment context on which employment equity principles could apply; assigning people to certain jobs, for example. If you're in one town and a job comes up in another town, who gets assigned to that and who gets to stay can be very important decisions in an employment context, and the assignment of people on inappropriate grounds may be a problem.

Equally pay; now, I grant it this bill does not on its face address that issue in a direct way, but I think it outlines the context in which these are some of the things that -- you know, we are of concern that these decisions be made on as neutral a set of grounds as possible related to the job characteristics.

As to Ms Akande's comments, I find them always cogent, not always accurate, and this is one of those unfortunate circumstances where I have to disagree with her. As I said when I was talking about the government amendment to its preamble, you don't want to do finger-pointing, but you have to set out the reason why you need the bill, and the first sentence is really all that's needed to do that.

There is the justification for the bill outlined in that first sentence and we move on from that to say why it's a good thing. We don't spend three paragraphs finger-pointing in a sandbox exercise of saying, "It's your fault, it's your fault." One paragraph sending out a rational, reasonable justification for the bill and moving on to say, "And here's why it's an important and valuable thing that we do, because it's a good thing for the economy" picks up almost exactly the wording that Mr Fletcher, the parliamentary assistant, used when he described this preamble. It's reflected here. I'd hate to see him vote against his own words.

As to the question of Mr Malkowski, I think it's a valid question. Surely, though, the goal of this bill in the long run is that we have an economy and workplaces where that principle is the one that governs. Every person, regardless of his or her characteristic, is guaranteed that equal access, because we are setting out the goal of the bill here, what we're trying to achieve. Ideally, one day we'd like to say that this bill isn't necessary any more. That's the goal and that's why we're establishing in the preamble the kind of society. It's a bit idealistic, but that's fine. I think we're setting out what we want to see.

I hope my friends in the Conservative Party will think about voting in favour of this. I know they've talked about education and training as part of the reasons why some of the employment decisions are made on irrelevant factors, why some people aren't as involved in the workforce as they might otherwise be, and those are the kinds of barriers that some of this bill tries to talk about. I think that is a valid area and one we'll address elsewhere.

That first sentence isn't meant to say that's the only reason that there is failure to allocate job opportunities in the workforce equally. It's one of the stronger reasons. Absent this factor, there's no reason to even have this bill. So I think it's important to have it in there. But we don't need to blame for too long. I think this sets out the reason to have the bill and why we should have it and why it's good for Ontario. I think it's as succinct as need be.

If Ms Harrington would vote on it if we add the word "retained" in that description of employment-related decisions that would reflect the wording elsewhere in the bill, I'm sure we'd be glad to do it to get her support.

Mrs Witmer: I guess I'm the friend in the Conservative Party. I tell you, I'd like to support this preamble, and I really do like the latter part. The entire preamble is short, it's very concise. It does attempt to establish a purpose and objects, as a preamble should. However, I do have some concerns, and Mr Murphy has already alluded to them.

In the first line it indicates, "The people of Ontario recognize that systemic and intentional discrimination has resulted in employment opportunities being allocated and employment decisions being made on non-job-related factors...." I am still concerned that, again, that lays the blame solely at the lap of the employer community. Even the government, in its amendment, has now indicated that it is caused in part by systemic and intentional discrimination. I have mentioned repeatedly that I believe there are other factors, and I've mentioned the barrier. One of the barriers being a very significant barrier is education and training.

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Last night I had an opportunity to read an article from the University of Western Ontario, and it concerned the barriers that native students and the disabled and the visible minorities have faced in gaining access and accommodation at the University of Western Ontario. It went on to indicate how some of the first natives had coped with the barriers. So I still maintain that some of the very significant barriers that people in this province face are educational and training barriers.

This preamble that the Liberal Party has put forward does not indicate that there is cause for concern in that area. It only puts the blame, as I say, and blames the employers. Unfortunately, because of that we will not be able to support this preamble. But I do believe it's short and concise, and that's the way a preamble should be.

Mr Curling: I just want to address Ms Akande's comment that we're still blaming. I think we have to recognize what is the cause of why we are putting this legislation forward. We know, as I said, it's because of systemic discrimination sometimes, and at times intentional discrimination.

I don't agree with my colleague in the Conservatives, although I see her actually supporting the legislation in a different way and I think I could convince her. It is in no way that we're saying it's the employer who is to be blamed. We talk about "has resulted in employment opportunities being allocated...." Employment opportunities don't really mean the employer. Actually, it could mean the education system; it could mean all other aspects outside of the workforce. Therefore the blame is not on the employer. It's about the system in place that somehow systemically discriminates against those people whom we have designated here. So it is not an intent to blame the employer. I think other things have to be put in place in order to have this employment equity legislation be effective.

I have no problem at all in having consistency in the words, as Ms Harrington said. Sure, if it causes a problem legally and another word can be found for "paid" that is consistent, I'm happy to change that. "Assigned" or "retained," if we want to interchange those, that's fine with me. But the intent here is to point out that these are some of the things that people are being denied: the proper pay, the proper hiring process, proper promotion, proper assignment, as my colleague had said. So I have no problem at all in that.

It is about time, as I said, that we don't have to bury our heads in the sand. We know what is the cause. This preamble is based on studies that have shown what is causing these people in the designated groups to be shut out, and we must address that, and I think that's what this does. We've tried to be concise, to be positive, and I'm sure that, as my colleague said, it reflects many of the words that you have always said over there, because we do want an employment equity bill, and I know my colleague from the Conservative Party shares that with me.

Therefore I think I have looked after the fact that the lack of opportunities are not only the employer's fault but are also on the broader society, the wider society that has not made provisions for those people who have been shut out of the workforce or opportunities to be educated or opportunities to be trained, and I think this addressed it. So I hope I can get the support of all the people here.

The Chair: All in favour of the amendment? Opposed? The motion is defeated.

Moving on to other amendments, Mrs Witmer.

Mrs Witmer: I move that the preamble of the bill be struck out and the following substituted:

"The people of Ontario believe that the recognition and reward of each individual's skills and talents, without discrimination, is a hallmark of successful personnel practices. The people of Ontario value the diversity of human talent that is available in Ontario and recognize that every individual should have the right to equal opportunity in employment.

"The people of Ontario have recognized in the Human Rights Code the inherent dignity and equal and inalienable rights of all members of the human family and have recognized those rights in respect of employment in such statutes as the Employment Standards Act and the Pay Equity Act. This act extends the principles of those acts and has as its object the amelioration of conditions in employment for aboriginal people, people with disabilities, members of racial minorities and women in all workplaces in Ontario. However, nothing in this act diminishes or removes an employer's right to hire or promote the most qualified person for a position.

"Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the province of Ontario, enacts as follows:"

Okay. We have put forward this amendment. It is short. It is concise, as preambles to legislation typically are. We have intended it to be very positive. We want people in this province to be feeling very cooperative and very good about the legislation. We want to eliminate some of the fears that are presently circulating in the province. We want to assure people that people who are the best qualified should continue to be eligible for all positions and no one is going to be hired or promoted because they're not the best qualified. We want to make sure everyone has an opportunity.

We also believe very strongly that there's tremendous human talent out there that has not been tapped, and we would hope that as a result of this legislation and the focus on the designated groups, all employers will certainly give all individuals a fair and equitable opportunity to be recruited, hired and promoted throughout the system.

Mr Malkowski: I'd just like to ask you to clarify your comment. If I'm understanding you correctly, you're discussing perhaps a person who has a PhD compared to someone else who has a BA but both perhaps have qualifications to meet the job. You're saying that you would focus then only on the person who has the PhD and not focus on the person who has the BA, regardless that they both have the same qualifications?

Mrs Witmer: No. Again, it would be based on merit, the best-qualified individual for the particular job according to the job description.

Mr Curling: I've read the PC motion very carefully, and I was tempted to support this, but I have a bit of a problem with it.

First, there's nowhere in here that it mentions anything about systemic discrimination. It's your prerogative to leave that out. That's fine. But in the second paragraph you say:

"The people of Ontario have recognized in the Human Rights Code the inherent dignity and equal and inalienable rights of all members of the human family and have recognized those rights in respect of employment in such statutes as the Employment Standards Act and the Pay Equity Act."

The reason for employment equity is to deal with systemic discrimination. We know that the Human Rights Commission does not adequately address systemic discrimination, and if we leave it up to the Human Rights Commission to deal with that, I see a wide gap again in which these inadequacies will never be addressed, this systemic discrimination. So while I wanted so much to support this, I find that it is inadequate in that aspect of it.

The other part I'm having some concern about, though, is that your argument previously was to say that we seem to be blaming people. Somehow it's a sort of backhand way to say, "However, nothing in this act diminishes or removes the employer's right to hire or promote the most qualified person for a position."

I think the preamble should set a tone, and not to say, "Well, listen, your preamble didn't do that, so our preamble will then say nothing in this act doesn't do that." I'm a bit concerned about that. Is it a part of a preamble to say, "You know, your act doesn't do this"? This would be an act that will be sitting on the books. When people read that legislation all the time, it will say, "However, nothing in this act diminishes or removes the employer's right to hire or promote the most qualified person for a position." I'm not comfortable with that. I don't know where you want to go with that or why you put that in.

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Ms Carter: I shan't be supporting this amendment. First of all, it does strike out what is there already and I think that would be a loss because we do need some kind of a context for this, and I think the question of appearing to blame employers is solved by what we have now in our first amendment where we say it is "caused in part by systemic and intentional discrimination in employment." In other words, we're not saying that discrimination is necessarily anybody's fault, that there are other factors. So I think that's taken care of.

I agree with Mr Malkowski that there are problems with "the most qualified," but what I would like to have a further opinion on is the end of the first main paragraph there, that, "Every individual should have the right to equal opportunity in employment." That sounds very good, but I'm just wondering how useful that really would be in practice and I wonder if we could ask for a further opinion on that.

Mr Bromm: I think that as part of the preamble it doesn't set up a specific obligation per se in the act but it does set the tone for what follows in the act. The real purpose of this act is to focus on the historical discrimination that has been faced by the four designated groups, and the rights and obligations that are set out in the act follow from that premise. By not focusing on that within the preamble itself, you really do set up an inconsistency between what you're saying in your preamble and what follows in the act itself. Saying the equal opportunity for all and then focusing on the four designated groups is not particularly consistent, and the focus of the act and the preamble should be on the four designated groups that have faced the systemic discrimination that has led to their underrepresentation in the workforce to the extent that it is today.

Mr Murphy: I too have some problems. I hate to go back to the stool analogy, but I'm going to.

Mrs Marland: You're going to embarrass yourself.

Mr Murphy: Unfortunately this leaves us with only two legs on the stool, and I don't know where that stool goes.

The problem really is, I think, that there's nothing in here that establishes why we need an employment equity bill. I do think there is an importance to that in a preamble, that this bill should be enacted because of this reason, and I'm not sure that's established in this preamble.

I do also have a bit of a problem with the last sentence in the sense that it's more like a provision you'd include in an act than a preamble, as Mr Curling I think quite rightly noted. It's a principle that we support in the concept of merit. It's certainly a principle that I've heard the government support as, "This bill does nothing to diminish the merit principle." It's a shame that they didn't want to see those very words in the act, and hopefully they'll change their minds.

This too, unfortunately, I think as Ms Harrington pointed out a bit earlier, doesn't quite pick up all the wording that is used elsewhere in the act. It just focuses on hiring and promoting and doesn't pick up the "retention and recruiting" wording that is used -- or at least will be used once the amendments are made -- consistently throughout the act.

So I think it gets at some of the issues of merit appropriately, but it doesn't really talk about the purpose of the bill, and that is that there is a systemic discrimination problem. And it's not a blaming thing. Certainly part of it's education, part of it's training, part of it's access to child care.

But I do think it misses one point, and I think Mr Malkowski's question gets at it quite appropriately, and that's the question of the most qualified. That sentence at the last alone doesn't quite get you to the nub of the issue, because you're trying to hire the most qualified in the context of having removed barriers and doing measures that increase access for groups who have faced systemic discrimination. I think the disabled community is an example of one where you'd have to make accommodation in order to have the qualifications to do the job, and I'm not sure that's quite sufficiently reflected in the preamble clause.

So I have a problem with this. The problem is sufficient that I'm going to have to vote against it, but not because I oppose what's here, more because I oppose what's not here or support what's not here, and it isn't here.

Mr Fletcher: Thank you to the Conservative Party, the third party, for their amendments. I think it shows a little more conciseness than what the Liberals have presented. They were all over the place. At least you're coming across in a concise manner, and in a way that I would have expected the Conservatives to be presenting in their preamble.

Interjections.

Mr Murphy: You can't play all the fields, Derek.

Mr Fletcher: Mr Chair, can I get some order around here? As far as what your preamble is saying, again, I agree with Mr Murphy that there are a lot of things that it isn't saying, and the government preamble I believe addresses all concerns, especially when we get to the point of the "However, nothing in this act diminishes" part. It's presupposing that employers have always hired good people but that with this act they're going to be hiring bad people or unqualified people. I don't see that as being the problem in our society, the people who are in the designated groups as being unqualified. As our amendment has said in a positive way, people with merit in the designated groups have been overlooked because of certain problems, and we have to think in a forward fashion that way. Again, I think you are looking at the back of what has happened instead of looking forward to what can happen and where we want this act to go.

I think the people of Ontario who presented to this committee also directed the government and members of this committee that, "We want a positive preamble," that showed some progress as far as the economy is concerned and how employment equity would benefit the economy and how the business community could grasp hold of the employment equity legislation and use it in a way to help their businesses grow, because as they realized, along with everyone else, a large portion of the people they do business with do come from the designated groups and it is time they were starting to be recognized. In that sense, in focusing on such a narrow scope, I think your preamble falls short of what the employment equity legislation is attempting to do.

Ms Harrington: Briefly, I want to concur and clarify both what Mr Malkowski and Mr Curling said about the quote in here, "To hire or promote the most qualified." To me, that says that the PhD will be hired above the BA no matter what the requirements of the job are. So I feel that for that reason alone this has a problem for me.

Mrs Marland: I can't honestly believe what I'm hearing about what the most qualified means.

Mrs Witmer: Job-related, Margaret.

Mrs Marland: Even if you don't agree with that sentence, I don't understand how you can read anything else into it than what is actually there. It's talking about the most qualified. Since when is the person with the PhD, to use Gary's example, which now Jenny and Margaret have both supported, the most qualified over the person with the MA for a job that isn't related at all to academic skill and requirements? I mean, the most qualified: Let's talk about the person who sits on a three-legged stool and milks a cow.

Mr Murphy: I apologize.

Mrs Marland: As Derek rightly said, the people who sit on three-legged stools can milk cows, and I tell Mr Murphy that because I have done that in my childhood years growing up on a farm. But I want to tell you that qualifications, as this refers to, it says, "The most qualified person for a position." It doesn't say how those qualifications will be measured. So why are we giving examples of academic pieces of paper? It's ridiculous for you to be so --

Ms Carter: But there are some jobs for which all qualified people are equally qualified, right?

Mrs Marland: I think we also have to recognize that employers have a right as well. If employees' rights are to be protected, if we're truly believing in equality, then we have to recognize that the person employing that person has a right. If we're looking at hiring the most qualified person for a position, it wouldn't matter whether you had a PhD or an MA or a BA, if you were going to sit on a three-legged stool and milk a cow, you'd have to be qualified at hand-milking to do that. It has nothing to do with other classifications of qualification. I can't understand why you've got off on the tangent about what the words actually mean in that sentence in this amendment.

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The Chair: The Chair will not allow any further mixed metaphors to be used in this committee.

Mrs Witmer: I'm quite perplexed about the concern. I have sat for years and years on hiring committees and you certainly don't look at someone's academic credentials, you look at the job description and the job qualifications. Whether or not someone has a PhD, an MA, a BA or a high school certificate, depending on the job and the job interview and the related skills the individual has as they relate to the job and the performance of the job -- that is the basis on which you hire an individual. I can assure you that is what is intended. I can't even imagine why we're discussing what we are.

What we have attempted to do in this preamble is to be inclusionary as opposed to exclusionary. If you listened to the comments of many of the presenters, they found the preamble very exclusionary. In fact, I am very concerned about the response that was made by the government staff member here who was concerned about the statement I made that the people of Ontario value the diversity of human talent that is available in this province and recognize that every individual should have the right to equal opportunity in employment. He seemed to indicate that this should not be here. We should only be concerned about the designated groups. That is the type of notion that is generating the fear in this province that anyone who is not a member of the designated groups will not have the same right to equal opportunity. That's what's generating the fear about the quotas. He confirmed for me that maybe there is reason for fear.

You, as a government, need to be giving a clear message that there is a benefit to everybody in this province as a result of this bill and that everyone, regardless of gender, sex, ability, disability or what have you, is going to have equal opportunity to employment. You cannot indicate there is going to be preferential treatment for some, because that's what's creating the fear out there and that was reinforced by the response that was made.

As far as the object, we have the object here. We have clearly stated the purpose of the legislation and we've indicated the objective as well. It's short, it's concise and I hope you will give it serious consideration.

I'll make one last statement, because we'll be leaving the preamble after this. I really think it's unfortunate that all three parties don't work together on a preamble. I have to tell you, I think there were some good points made in the government preamble. I think there was a good sentence in the Liberal preamble. It was very short and concise, and that's why I say it was a big sentence. I think we've made some points here that would lead to the creation of a preamble that truly reflected what we heard in the three weeks of hearings. It would be positive, it would be inclusionary and it really would be illustrating that this is in the best interests of all Ontarians. It's a shame that we don't do that, but this process unfortunately just doesn't seem to allow for that.

Mr Malkowski: I'd like to respond to a comment that was made by the PC member. Let me go back to the point about the three-legged stool. Without three legs, you fall to the ground, the interpretation being -- my concern is that if you minimize the employer's right to establish job qualifications and skills, you are ordering the employer to add more qualifications to his job description and I disagree with that.

I think it's really important that you recognize that any employer has his own rights to establish job descriptions and recognize the qualifications required to do that job and to look for people who can meet those needs. But to tell the employer he must add "the most qualified" is not appropriate. It's not appropriate to tell the employer what he must do and to say "the most qualified" is putting another leg on that stool. That is why I disagree with what's been stated.

Mr Fletcher: Just listening to Mrs Witmer, she did mention Mr Bromm and what he had said. Perhaps Mr Bromm should clarify what he'd said.

Mr Bromm: I guess the only thing I would clarify, in explaining what problems may arise in the preamble in using the language that had been put forward, is simply that the focus of the act and the preamble itself should be consistent and it in no way denies the equal opportunities of other people in Ontario that are reflected by the Human Rights Code.

This act does not take away the rights that are under the Human Rights Code, and that itself is reflected in section 1 of the bill, which says that all people are entitled to their treatment in accordance to the Human Rights Code. By the preamble focusing on the designated groups that this act focuses upon does not detract from those rights at all, but it sets the tone for the legislation and just creates consistency between the preamble itself and the act.

Ms Akande: Concerning this issue, I must admit I agree with Ms Witmer in that it is unfortunate we could not cooperate on an effort towards a preamble. However, having said that, and also recognizing more and more the tradition that goes into the way things operate, let me also say my concern is also with the last sentence in your first paragraph, "However, nothing in this act diminishes," and let me focus on my reason for that.

We are in a period now of very serious underemployment where many people are employed in areas that have nothing to do with the skills they have or with the abilities they have and often are employed in areas that are way below -- I hate to use that term -- but where the skills are quite different from the ones they have achieved. It's a sad situation because what happens is those who are qualified to do different work are assuming the jobs of people who really have different qualifications and where the other qualifications are quite different from that and quite beyond that.

In recognizing that, I think what we're concerned about here is not your intent but, more than that, the possibilities of it being misinterpreted by employers who read it and who feel it provides for them a margin of leeway which is far beyond what I'm sure you're intending and what people of like minds and good intention would allow. This is my concern for this particular sentence. I know what you mean and I know what you're intending, but I'm afraid it might not be interpreted in that way and for that reason I'm not supporting it.

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Mrs Joan M. Fawcett (Northumberland): I certainly agree with what Ms Witmer stated in that it is unfortunate we can't all contribute, especially to the very important part of a bill, the preamble. I think a lot of good points are lost just simply because, well, it's the opposition that has presented it, or whatever. Maybe we could try something innovative and just take a look at presenting a preamble that would include the good points of the government's preamble as well as the official opposition and the third party and lead the way. What's wrong with leading this government into the so-called next century?

The Chair: All in favour of the amendment? Opposed? That motion is defeated.

Now, the vote on the preamble. All in favour of the preamble, as amended? Opposed? That carries.

There are no amendments to section 1.

Mr Murphy: Can I ask a question of the staff while they're here? I'm sort of following up on a point Mr Curling pointed out. The word "treated" appears in subsection 1(2) and subsection 1(3). It appears nowhere else in the act. There are a series of government amendments which have been put forward to add "recruitment" in other parts of the act so that there is a consistent wording throughout the act of "recruitment," "hiring," "retention" and "promotion." Then suddenly, out of nowhere, the word "treated" is put in here. It's not mentioned in any other place. It's not consistent with the act. I think it picks up on a very valid point that Ms Harrington made with respect to the preamble.

I guess (a) I'm confused by why it's used. It's not defined anywhere else in the act. I just don't see that it's a term particularly used in an employment context. Can you explain, if there is one, a rationale for why that word is used and not the consistent language you're trying to impose through the rest of the act? Maybe that's to the parliamentary assistant, appropriately, and then through him to whomever he needs to turn to for advice and guidance in these matters.

Mr Fletcher: Are you asking why that word is used?

Mr Murphy: Yes, why it's used, why it's not defined, why it's not consistent with the amendments elsewhere in the act and what it means.

Mr Fletcher: The way people have been treated in employment practices is the reason the word is being used. People have been treated in an unfair, discriminatory manner when it comes to -- not all people, people from the designated groups have been treated this way. I think even you and your party have used the word "treated" when describing people who form the designated groups, in your speeches and what you've been saying, "the treatment of people." I think it's an accepted term that you have been using and we have all been using with full knowledge of exactly what it means and what we've been saying.

Mr Murphy: But I use a lot of words which don't make their way into legislation.

Mr Winninger: Like "stool."

Mr Fletcher: Yes, like "stool."

Mr Murphy: Are you or any of the staff aware of a decision in the employment context that tells us what "treated" means?

Mr Bromm: I think the word "treatment," when it appears in these first several sections -- my understanding is, first, that the wording is consistent with the Human Rights Code, and also the word "treatment" is used here in setting up a principle of employment equity. I think it's very similar to what Mr Fletcher was saying, that the whole notion of the way the designated groups have been treated in the past is what's led to the need for the legislation. It does not appear later on because "treatment" really falls under the umbrella terms of "hiring," "promotion," "retention" and "recruitment." It's not mentioned later in the legislation, but as a principle of employment equity in setting up, it is a main area that has led to the need for the legislation itself.

Mr Murphy: So am I to take from this that the absence of the words "recruitment" and "retention" then means that aboriginal people are not entitled to retention and recruitment in employment equity? It strikes me as inconsistent on its face. Just logically, it strikes me that you'd include that in there.

Ms Beall: Perhaps I can assist. If you'll notice, section 1 uses "entitled to be considered for employment, hired, treated and promoted." That deals with, as Mr Bromm said, the overarching concepts and expresses them consistent with the terminology used in the Human Rights Code.

Mr Murphy: If I can follow up, for example, and I know I'm jumping a bit, but I think it's relevant to section 1: In section 2, paragraph 3, you amend to add the word "recruitment" -- is it "hiring" or "recruiting"?

Mr Curling: "Hiring."

Mr Murphy: -- and to add "recruitment," and yet in paragraph 1, which is also one of these principles, the word "treated" appears and you don't add "recruitment" there. This isn't a political point; it's just really talking about the logic of the bill and the logic of the way you're writing a piece of legislation. That inconsistency, I suppose, bothers me a little bit.

Mr Fletcher: If the Liberals are willing to make an amendment, we'll listen to it, but if not, I think we should move on to section 2.

Mr Murphy: I'm prepared -- maybe I'll leave it to Mr Curling.

Mr Curling: The fact is that we are prepared, and I think what Mr Murphy's saying, that inconsistency there, if we could just rectify it here, it's fine with us to put especially "recruitment," because you went ahead and changed that to amend it to "recruitment." We would be prepared -- if you want us to have the amendment, we can just ask that the word to be included in there, that after "hired" you have "recruitment." It appears, and I don't know; at a glance, we saw "treatment" three times.

Mr Fletcher: Point of order, Mr Chairman: Are we discussing an amendment? If so, it should be put.

Mr Murphy: I'll move an amendment.

Mr Fletcher: And it should be in writing. They said they'd tabled their amendments, and now they're coming back with another amendment.

Mr Murphy: Point of order.

The Chair: Mr Murphy, I'm about to assist you on that point of order. They were making comments on that section, and through their comments, they appear to be moving towards an amendment.

Mr Fletcher: The point of order is that before you discuss an amendment or motion, it must be placed.

The Chair: Right. There are comments or amendments that can be made on this section.

Mr Fletcher: But they are discussed after they are placed, not before.

Mr Murphy: A point of order.

The Chair: It's not a point of order.

Mr Murphy: I do want to respond. It's ludicrous to criticize us for failing to put this in writing. I asked a series of questions of the staff, the parliamentary assistant for clarification. The clarification is not sufficient. He in fact invites us to put forward amendment and then insults us for not putting it right. I think that's just atrocious behaviour.

The Chair: Mr Murphy, that's not a point of order either. I am trying to be helpful. If you want to get to an amendment, after that commentary that you made, we can accept that at any time.

Mr Curling: On the same point, if the parliamentary assistant invites us, of course, to make the amendment on the spot, we are prepared to do that.

The Chair: Mr Curling, you don't need to be encouraged by them to make one if you so move.

Mr Murphy: I will move an amendment to subsection 1(2) to delete the word "treated" and add after the word "hired," "recruited, retained."

The Chair: Very well, if you would write that down, Mr Murphy. Mr Winninger, as the motion is being written, do you want to comment on that?

Mr Winninger: Just by way of discussion here, first of all, I can understand why the term "treated" was used, and I see it in the Human Rights Code as well, which I have before me. But if we look at subsection 1(2), where it has the phrase, "considered for employment," I think it would be unduly redundant and prolix, when you've already said, "considered for employment," to add in the word "recruited." It seems unnecessary. I could understand perhaps why an amendment might suggest that "recruited" be substituted for "considered for employment" to make it consistent with language used in the rest of the act, but I'm a little confused as to why we need to say the same thing in so many different ways.

The Chair: Very well. As Mr Murphy continues to write that motion, further debate on that amendment?

Mrs Marland: I'll wait till the next amendment.

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The Chair: An amendment has been moved. All in favour of that amendment? Opposed? That motion is defeated by a very close margin.

Mr Murphy: I'm going to move an amendment to subsection (3) of section 1.

The Chair: We're on this section. We haven't moved it yet.

Mr Murphy: All right. I apologize.

The Chair: If there are no further amendments, all in favour of section 1?

Mr Murphy: No, this is to subsection 1(3).

The Chair: Oh, you have another amendment?

Mr Murphy: Yes. It's basically the same motion to delete the word "treated" and to add after the word "hired," "recruited, retained." That's the motion.

The Chair: Fine. Same motion with an amendment to subsection (3). All in favour of that amendment?

Mr Murphy: Can I speak to it briefly? I know the last amendment got defeated, with likely to be a similar result to this one, but let me say that I just thought I heard, not so very long ago, members of all three parties say: "We should work together. We can design a better bill if we work together. We should enter the new dawn and talk about how, together, we can maybe finally do something as legislators."

There are people watching this on television -- maybe not many, but a few --

Interruption.

Mr Murphy: As long as the people in St George-St David are watching, I'm happy, including at least one constituent in the room.

I think they're going to look at us and say: "What kind of silliness are these people engaged in? They're supposed to be working on legislation. We elect them to do a job. We elect them to make a better bill." Here we're trying to do something, and I'm saying let's work together. Maybe this isn't the magic wording. Mr Winninger made a point which may in fact be valid. This may not be the perfect amendment, but I think there's something that we need to look at here if there's a problem. I may be wrong, but I think there are some things we can work together on. That's what we're elected to do. That's why we're here, to make these bills that we consider better, and that's what we're trying to do.

I'm hoping that we can put aside some of the partisanship that the public sees as why they view politicians as illegitimate, why they're so upset with us.

Mr Winninger: A point of order, Mr Chair: I think as a committee we've been very flexible in considering amendments put forward by the opposition, and if a brilliant amendment finally arrives, I'd be pleased to support it.

The Chair: Thank you. Further debate on this?

Ms Harrington: I don't believe that we're engaged in silliness here, or partisanship. I think what we also have to remember is that staff and lawyers and in fact all the stakeholders in this legislation have been looking at this wording for two years, and here we are, one morning for two hours, thinking that we can make changes right off the top. I think there may be reasons why this wording is here.

I would like to ask staff about the reason for the particular wording that we have, because we can't, just off the top, change it. There may be reasons that we're not aware of.

The Chair: I'm sorry, Ms Harrington, the staff is not there to listen to the question.

Mr Murphy: Do you think we can stand it down and come back to it?

Ms Harrington: I think it's important that we show this is not silliness, this is not partisanship. I think we have to be fair about this to our staff.

The Chair: All right. Ms Harrington, we have a problem. You asked for staff clarification, Mr Murphy is asking to stand it down and so we need unanimous approval for that.

Ms Harrington: I would first like to have staff clarify, and if it is not reasonable to us what they say, then we might want to stand it down.

The Chair: To do so, you would have to repeat your question, because they were talking on other matters.

Ms Harrington: I will try it again. I would ask staff to clarify for all of us that the wording here that you have put forward may have reasons we are not aware of that you would like to justify the wording.

Mr Bromm: I'm not aware of any reasons, other than the ones that have been put forward, for the way the wording has appeared in the sections as they are.

Ms Beall: However, if I may add to that, given that this draft of the bill went in a year ago, I think in order to be absolutely sure as to the reasons why those particular words were chosen, it would be necessary to speak with the people who were actually involved in the drafting at that time to determine whether or not there's any point we're not aware of that we should be for the purposes of answering your question.

Ms Harrington: It sounds to me like it would be appropriate to stand this down until 1:30 or 2 o'clock.

The Chair: Mr Murphy has moved that we postpone this matter or stand it down. Is there unanimous support for that?

Mr Fletcher: No.

The Chair: If there is not unanimous support, we debate this matter; if there is, we stand it down.

Interjections.

The Chair: If there is unanimous support, we will stand it down; if there isn't, we continue the debate and vote on this amendment.

Ms Akande: We'll stand it down.

The Chair: All right, there is unanimous support to stand this down. We'll come back to this matter.

Moving on to the next section, section 2.

Mr Murphy: If I can, Mr Chair --

The Chair: Actually, it's the Liberal motion.

Mr Murphy: No, but this would be just before that. paragraph 1 of section 2 also uses the word "treated," so the same issues would apply, so I would logically say we should stand down the vote on that paragraph until the staff can report back.

The Chair: Very well, moving on to section 3, then.

Mr Murphy: No, we have an amendment to --

The Chair: If we're standing it down, we might as well stand the whole thing down.

Mr Murphy: All right.

Mr Fletcher: We are doing subsection 3(1), I believe.

I move that the definitions of "employee" and "employer" in subsection 3(1) of the bill be struck out and the following substituted:

"`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')"

We're doing section 3. Is there some confusion?

The Chair: Continue, Mr Fletcher.

Mr Fletcher: This amendment to the definition of "employee" clarifies that it means permanent employees, term employees hired for three months or more and employees who are hired to fill regular seasonal positions. This definition includes dependent contractors and employees hired on a commission basis.

We hope this amendment will assist employees in determining who should be considered an employee for employment equity purposes and also that it removes the reference to the common law, which may create some confusion and may unnecessarily limit the definition. It makes the definition consistent with the obligations as set out in the draft regulations.

Mrs Witmer: I will be voting against this particular amendment. I'm extremely concerned that all seasonal employees and term employees are going to be considered within this legislation. As I mentioned yesterday, it's going to have an impact on the agricultural community, which is going to be hiring temporary employees to work in the fruit-picking industry or whatever, tobacco industry. These individuals are going to have great difficulty in surveying the employees they do hire, many of whom come from out of the country. It's going to increase the compliance burden for the employer because he might at one time have only one or two employees, yet at the busy time of year he might have 55 or 60 or what have you.

I'm also very concerned because students are going to be very negatively impacted. Many students have summer positions in the tourist industry, students have summer jobs, students have Christmas vacation jobs in the retail industry and again, they are now going to be counted even if they work as much as I guess a week. The retail industry had specifically asked that employees working less than four months be excluded from the legislation and that's not going to be the case now.

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So I think as a result, you're going to see the employer community attempting to keep its numbers below 50. I think it can mean some further hardship for students, who are already suffering because of the increase in the minimum wage, which means that employers are now hiring university students and adults to do the jobs that high school students used to do. So I'm concerned about that aspect.

I'm also concerned about the employer definition, the fact that it refers to a trustee and a receiver, because I think we need to remember that those individuals are required, under the provisions of the Bankruptcy Act, to act in the best interests of the creditors. This would require them to sometimes act in a manner which would be quite different than in the best interests of the creditors. So there's a contradictory obligation here and it's not appropriate that that coexist.

I'm also concerned about the last line, which says, "on such other basis as may be prescribed by the regulations." This means that the definition of "employer" can be changed at any time by the regulations, which means that cabinet, through the back door, at any time can change the definition of "employer." I'm really concerned about that, because I think for individuals in this province -- everyone -- there needs to be some certainty as to the fact that this will or will not be for a certain length of time. So I'll have to vote against the change.

Ms Akande: I recognize the concerns of the member opposite. I feel, however, very strongly about seasonal employment and I'm interested that students are used as the example. As you know, the Jobs Ontario Youth program is the only youth employment program for summer that has equity goals. It has not prevented students from access to work. It has in fact supported it and made sure that more students than normally would have access to that work.

The point is this: Where employers regularly hire seasonal employment, it would be important to make sure that everyone has access to those jobs. There is nothing in the research that supports that hiring from the traditional groups, from the groups that are usually employed, is quicker or more efficient or more easily achieved than broadening that whole pool from which the seasonal employment is selected.

So I feel very strongly about the fact that employers should be made to have equity goals for seasonal employment, and I would draw your attention to the fact that the government of Ontario has an extensive program that exists in many ministries that employ youth during the summer. It seems to me always a shame and not a small disgrace that those programs don't have equity goals and certainly don't achieve them.

Mr Curling: I have concern about this amendment too, about the definition even of "employee," not only of students, but of farm workers, who are seasonal employees. The fact is, that's not been clarified. We tried our best in our technical briefing to ask the staff to define for us if those people will be calculated within the statistics that we have -- in other words, these people are coming from outside the geographic area of Ontario to be employed. I wasn't quite clear what they stated there. As a matter of fact, I think I heard yesterday that people who were coming here more than three months will be counted in those statistics and it will be skewing the statistics outside in greater Ontario. They're not being drawn from that area. So I have concern about that aspect of it.

The other aspect I have concern about is the construction industry. It seems to me that these definitions are setting up where the construction industry will be set aside and complete regulations will be set up to govern the construction industry. Why I'm targeting those areas, it seems to me it is those seasonal workers and those workers who are on contract, mostly, are visible minorities, and all those designated groups are clustered in there. I think that we won't be able to deal with them effectively.

Again, this section really puts a lot in the regulations, while we are asking to put many of these things in the legislation. So we will be voting against that because we don't feel it addresses it properly, because it puts the definition where we can easily exempt people or put them over to regulation in order to define them.

In the other area I spoke about, I'm yet not clear about seasonal workers when it comes to the farm workers.

Mrs Marland: I think, Mr Chair, this is just pointing out some of the discussion that we had yesterday, quite frankly, especially at the end of yesterday. When I discussed the regulations yesterday, I said, "Really, you can spend all the time you like going through the bill and all of the amendments, and then when you get to the regulations it really throws it all out." In other words, why bother, because when you get to the regulations, what you're doing in fact is giving all the power to the cabinet anyway.

So it doesn't matter what we debate with these amendments about who an employer is or who an employee is and even what the groups are, because when you get to regulations, it says, "However, of course, the Lieutenant Governor in Council may make regulations that change all of that or broaden it or change it essentially." They can broaden it; they can narrow it; they can do whatever they like.

So while we've got such wide-open regulations that are attached to this bill and in such a way that they actually come under section 50 of the bill, it's discouraging to even spend time on these amendments and the actual detailed wording.

When we talk about who's going to be counted in these statistics and who's going to be listed in these reviews, and now we're talking about people who may be in the country for three months, are we going to hand all of them their forms? I'd like to ask that question. If you're a temporary employee and you're in the country to pick apples or pick fruit or harvest tobacco or whatever the temporary employment is for three months, do you have to fill out the forms? Will you be given a form? I know you're not required in the act to fill it out. Will the employer have to give them a form?

Mr Fletcher: Would you like an answer?

Mrs Marland: Yes.

Mr Fletcher: I'll defer to Mr Bromm.

Mr Bromm: If you're an employee and if you fall under the provisions of the act, then you would have to be surveyed by the employer if you're coming in from the outside, but I think I should clarify. Perhaps I'm misunderstanding what the statement was, but in discussing the addition of persons coming from outside the country in availability or statistical data, that would not be the case.

The Statistics Canada and the census information applies to residents of Canada and citizens of Canada, not for persons who would only be coming in for three months at a time. But for the purposes of the employer, the employer would certainly count those individuals, but those individuals would not be reflected in availability data.

Mrs Marland: So we're back to what I was saying yesterday. You're going to have the employer hand out these forms, correct?

Mr Bromm: Yes.

Mrs Marland: To someone who probably may or may not be able to speak or read English or French? It's just going to be wonderful. It's going to be so chaotic and it's just ludicrous to look at this in terms of short-term employment.

You know, it's tough enough today for everybody in business in this province, and then you're saying to people who employ people on a short-term, part-time basis: "Well, here's your forms, folks. I don't know if you can understand it, but if you can't read it and you don't speak the language, of course, I can phone the civil service, I'm sure, and get people from the ministry down here to do all the translation."

It's nuts. It's absolutely nuts, because what are you going to do? I'm sure you've got lots of money to hire a backup of people as resources to deal with where the problem is language itself.

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If you're asking the employer to do something, then obviously if you're not going to follow through that he or she does it, it makes it an even bigger farce. How can that employer do it in a short-term, part-time situation where there may be a language barrier? I'd like you to tell us how that's going to work. I don't happen to have a riding that has that kind of employment in it, but every caucus has a riding with that kind of employment in it, and I'd like you to tell us how you're going to help that employer communicate what the forms are about.

The best part of course is that the employer also can say to the employee, according to this act: "You don't have to fill the form out, actually; it's self-identification. You don't have to fill it out. You can hand it back to me, but I must have it back whether you fill it out or not." This stuff is garbage.

The Chair: Is that a question as well?

Mrs Marland: Yes.

Mr Fletcher: It's always like playing Jeopardy with Ms Marland. I have to figure out what the question is.

Mr Murphy: You look like Alex Trebek.

Mr Fletcher: A lot of people have told me that.

The Chair: Mr Fletcher, please go on.

Mr Fletcher: Sorry. First and foremost, you're not talking about a large sector of employers when talking in that sector, as far as what the bill is trying to accomplish. Again, I think we have to also look at the employment practices of some of the farm groups. Let's face it, I think you know and I think everyone sitting here knows that the people who are being recruited for picking fruit, picking vegetables, from offshore, are being recruited at a lower rate than what would normally be paid to people in Ontario. I think again it's a form of discrimination that is going on, and I think it's a form that should be addressed.

The second part is that perhaps we should start looking at hiring people in Ontario for picking fruit, for picking vegetables.

Mrs Fawcett: You can't get them.

Mr Fletcher: Whether you can get them or whether you can't get them, the fact still remains that employment equity is going to reach out to the groups that are going to be affected by it. I think it's about time that employment equity went out to ensure that people are being hired, regardless of their designated groups.

Mrs Marland: I would like the parliamentary assistant to answer my question, because I asked him specifically just to tell me what that farmer is going to do -- actually, I think it's very interesting -- while his crop is dying in the fields because he can't hire Ontario people. The fruit is going rotten because they can't hire Ontario people to do the picking and the harvesting of other crops. That's not an issue before us now, but it's interesting that you would say they should hire more Ontario people. But tell me what that farmer does, the farmer who brings in people from offshore, to use your terminology, for two or three months. I want to know what you physically want him to do with your forms that they can't read, and they can't even understand his explanation in French or English. Can you tell me what happens then?

Mr Fletcher: Exactly the same as any other employer would do in the same circumstance when they have an employee who cannot read or understand English or French.

Mrs Marland: What happens?

Mr Fletcher: They accommodate.

Mrs Marland: Can you tell us how it's going to happen?

Mr Fletcher: I'll defer that part to Mr Bromm.

Mrs Marland: I'd like to know who's going to help that employer with the language and the execution of the paperwork that's associated with this bill, particularly in the short-term and part-time employment arena?

Mr Bromm: The assistance to employers in preparing and completing and having their workforce surveys compiled is one of the mandates of the Employment Equity Commission. It's a mandate that's specified in the legislation itself. As to what those services would be, I cannot say at this point. The commission is in the process of developing its guidelines and developing its assistive materials, but certainly accommodation would be one of the needs that the commission would address, and language requirements would be among those needs.

Mrs Marland: So the answer is that "the commission is developing." That's the answer. We don't --

Mr Murphy: We couldn't get them to agree to bring them in.

Mrs Marland: We don't have the answer. We don't know what help is going to be available to these employers. We do not know today what help is going to be available to those farmers and other employers around this province. The answer we got is that "the commission is developing."

Well, I'm sorry. Why don't we develop the commission and find out what it is doing before we pass the dumb legislation? Right now, nobody's going to be able to implement the legislation because we don't even have the answers about what help will be available to those employers from the government via the commission. That's a non-answer. In fact what it says is, "We don't really know what we're doing, but we're going to make sure that it works, and let's pass it." That's what this is all about.

Mr Winninger: In your humble opinion.

Mrs Marland: I think it's unfortunate, because the intent of the bill, the intent of equal opportunity for everyone through this employment equity legislation, is one which we all support. But it's not going to work because of the way it's being drafted and it's not going to work because you're going to be sending papers and forms to employers who in turn are going to give them to employees. It's just going to be a ridiculous paper chase that nobody can get completed, and there isn't going to be any help from the government whose brainwave has developed this legislation.

The Chair: Thank you. We have Mr Murphy, but because the debate might go on, we'll adjourn for lunch.

The committee recessed from 1207 to 1406.

The Chair: We left off at section 3. Mr Murphy.

Mr Murphy: I want to focus on some of the points that were made prior to the break. I have a concern about some of the way in which this definition is going to impact on certain employers and employees, and also the degree to which this bill, as proposed by the government, continues to rely on regulatory powers to do that which I think the act or bill should itself do. That latter point is really a question of principle: I have a problem with the idea of putting too much power into the regulations and I'm concerned about that.

Let me also reflect the concerns that we were discussing yesterday with respect to "seasonal employee." I think there are a number of difficulties with it. First of all, you're going to have an incident where a family farmer, he or she, will have a small operation through the bulk of the year and, come picking time, will hire a number of clearly what are seasonal employees for a short period of time to get the crops in or the fruit picked or whatever is appropriate, and if those seasonal employees count to more than 50, they have to go through all the paperwork in the act.

Frankly, it strikes me as a useless exercise to force farmers to do that, because the people who are likely to be seasonal employees are probably not going to really benefit by the application of the act. They're going to change year to year, and a lot of the recruitment is done from outside of the country, as has been heard.

It also is going to result in your having different counts: You're not going to be comparing apples and apples, because the seasonal employees who come to pick those crops, by and large, are not going to be counted in your census data, yet you're asking employers to count them for the purposes of their survey in the application of the act. You're not going to be comparing the same thing, really, and it makes nonsense, I think, of what you're trying to do. The purpose is really to look at the Ontario workforce and to make sure it's representative and not look at other factors, and I'm concerned about that impact.

I think Ms Fawcett will be moving an amendment to deal with the farming situation, but that's just one that struck us so far. There may very well be other impacts that are not dissimilar that we haven't yet thought of.

I do want to pick up on the point Mrs Witmer made, and I think it's one that's important. I raised it with either the deputy or the staff on the first day, and that's the issue of a trustee or receiver being included in the definition of "employer." I do think there might be contradictory obligations imposed in respect of the Bankruptcy Act, and that might pose perhaps a constitutional paramountcy problem in terms of obligations imposed primarily on the creditors by virtue of the Bankruptcy Act versus obligations which might require a trustee or receiver appointed under a federal statute; obligations to spend money probably not in the best interests of the creditors by virtue of his obligations under this act versus the obligations imposed by the federal act. I'm wondering on that point whether the parliamentary assistant or the many excellent advisers he has gathered around him could comment on the issue of that contradictory obligation and whether there is a constitutional concern.

The Chair: I'm going to ask Mr Bromm, who heard the whole question, if he could answer that.

Mr Bromm: I guess it's a legal question, so I really can't respond to it, but Kathleen probably can.

Ms Beall: I'm sorry, Mr Murphy, just to make sure I have your question straight.

Mr Murphy: My concern is really that you have the Bankruptcy Act, which imposes obligations on trustees in bankruptcy, for example, or receivers appointed pursuant to the Bankruptcy Act as interim receivers. They have obligations primarily, it seems to me, to the creditors, also statutory obligations imposed by the Bankruptcy Act.

The way this wording of "employer" works, you could impose obligations on a trustee and creditor in terms of the operation of the business that would require expenditure of money to further employment equity principles, to go through surveys or do plans or all of those kinds of things, which strike me as an odd thing to ask a company to do that has done so badly it's in bankruptcy.

In any event, I'm concerned about whether you see any conflicting obligation between the federal act and the provincial act in terms of imposing contradictory obligations on the trustee.

Ms Beall: I think that's a question that can't be answered in the hypothetical. As you pointed out, it would depend on the particular circumstances of the particular company. There are many pieces of provincial legislation which would apply in a trustee situation. This would be another piece of provincial legislation which would apply in a bankruptcy situation, and the rules with respect to the application of those pieces of legislation would be the same as for this one.

Mr Murphy: Finally, one concern is that the construction industry has now been left out of it. I assume that in the original version of the bill, the reference to "the definition of `owner' contained in the Occupational Health and Safety Act" was required because you needed to get at certain things in the definition of "owner" that this definition would not get at. I assume the basket clause allowing regulations would be how it's envisaged that you get at that definition and, as I mentioned earlier, I have a concern about not putting it in the act, so for the reasons I've articulated I'm going to have to oppose the definition as it stands.

The Chair: There are no further speakers on this section, and we're ready for the vote.

Mr Fletcher: Mr Chair, just one more thing. We are voting on subsection 3(1), correct?

The Chair: Yes.

Mr Fletcher: If I can just go back to one point Mr Murphy did raise; it's the point about seasonal employees. As far as the filling out of forms is concerned, there are other forms that are already filled out by these employers, whether it be their employee forms when they come into the country, whether it be UIC or taxation purposes. The owners of the businesses are getting around in terms of helping people who have a difficulty with the language to fill out the forms that are necessary already in labour practice in Ontario. There is a mechanism and a way in which it's already being done, so it isn't really creating something else that has to be done.

Mr Murphy: To follow up on that, I'm going to have to disagree with you, with the greatest of respect, of course, but you clearly are creating a new obligation on an employer, and frankly, I suspect that most family farmers out there have no idea this is coming.

If the purpose of the bill, and I think we all agree, is to enhance employment equity of the people resident in Ontario, of the workforce we have here, it just strikes me as odd that where you have a sector of the economy based primarily on people who come in for a very short period of time, who probably do not come back the next year, you're not really helping very much by forcing the employer to fill out a bunch of forms, to ask for a survey when you are not going to get any result that helps those sets of employers. In fact, likely you might even get the reverse effect.

If it's true that most of the employees you are hiring are coming from outside of the country, it's actually likely that they fit, very much so, within designated-group categories, and you're going to have this really odd result where, on the basis of what you're doing, a farming community can be vastly overrepresented, if that's an appropriate term, in designated groups and you could skew the whole result in the area. I just think it's one of those odd results. I don't think it's intended that we do that.

We didn't hear from the Ontario Federation of Agriculture, we didn't hear from any farmers' organization about its impact. The stable funding bill has worked its way through committee, and I expect they were primarily focused on that as their gravy train and that's been their primary focus. There's probably some worth in seeing what those farmers' organizations say about this because I don't think we've heard from them. It may be too late, but I wouldn't mind having some input; but in the absence of that input I think we'll have to oppose it on the basis that I think that's an impact we don't want.

Mrs Fawcett: I'm glad I got back in time, because I have been in touch with members of the Ontario Federation of Agriculture on this particular section of the bill and they have some real concerns because of the unique, special characteristics of farmers and farming operations.

The social realities in another country where workers may be coming from may provide some problems around hiring and who comes to work. They say they would be really happy to have Ontario workers come forward, and I think the laws state that in fact the Ontario workers do get a chance to apply for those jobs, but very often they cannot get those people to stay with the job. It is necessary, then, and they find it better, to have the offshore labour who stay for the duration and do the job. However, they really feel that the seasonal portion of this should be exempt from the bill simply because it is a short duration, and it would make farmers have to deal with a whole host of problems they would really have trouble with.

I would like to move an amendment to section 3.

I move that a farming operation in which a portion of its workforce comprises seasonal employees employed for a short duration of the working year shall be exempt from the application of this act.

The Chair: I'm assuming your amendment is an amendment to the definition of "employer." Is that where you would link it?

Mr Murphy: I think it would amend 3(5).

Mrs Fawcett: I would like it to be 3(5) so we can hold it to then, but I just wanted to give it to you.

The Chair: Very well. We'll deal with that at the appropriate moment. Back to this amendment: Mr Fletcher, you're on the list.

Mr Fletcher: I'm speaking to the Liberal amendment now, am I not?

The Chair: No. This amendment does not properly fit here but somewhere else. At the appropriate moment they will move it in another section.

Mr Fletcher: Okay, fine.

The Chair: Very well. We're ready for the vote. All in favour of the amendment? Opposed? Carried.

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Mr Fletcher: I move that subsection 3(1) of the bill be amended by adding the following definitions:

"`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;

"`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."

This amendment defines seasonal and term employees. Seasonal employees are those who are hired for a position that is filled for a specific period each year, such as the Christmas season or summertime. Term employees are those who are employed or expected to be employed for three months or more. These amendments further clarify who should be considered an employee for the purposes of employment equity.

Mrs Witmer: I will be voting against this section. I'm really extremely concerned about the additional responsibility and the paper burden being placed upon the employer community as it relates to the inclusion of seasonal and term employees. I think we have now become aware of the very negative impact that it's going to have on the agricultural community. As we had indicated and speculated yesterday, I had said I don't believe the agricultural community is aware of the fact that it is going to be impacted by this employment equity bill. Indeed, Mrs Fawcett has now brought it to our attention. They did not know. It was just like the Labour Relations Act, Bill 40. Again, it had a terrible impact on the agricultural community: tremendous paperwork, tremendous compliance costs involved with all of this regulation.

This government seems to be doing everything it possibly can to put barriers in the way of job creation and hiring additional employees to do the job. I'm very concerned. Here we have the seasonal employee, again, we have the agricultural worker, the student who has the summer or the Christmas job, all these individuals being included in the count. An employer is going to be responsible for tracking these individuals. The cost and the burden are going to be increased. There are going to be legal fees, there are going to be consultative fees involved. As these people move in and out of the workplace, you could be adding thousands and thousands of dollars to the burden involved.

Any changes, it appears, that the government has made to Bill 79 have simply served to increase the regulatory powers of the government and made it more difficult for the employer to really get on with the job of creating new jobs in this province. I'll tell you, these two definitions are going to have a very negative impact on the tourist industry, the retail industry, and the agricultural industry in particular, as well as a negative impact elsewhere.

I can say to you that there are employers now who will never hire beyond 49 employees if they realize that seasonal and term employees are going to have to be added to the count. It's probably going to be the female workers and the students who are going to be very negatively impacted by this legislation. I'm really concerned that the government has expanded the regulatory power to this extent.

Mr Murphy: Briefly, because we've made some of these points with respect to the larger definition, my concern is that if you're trying to capture within the seasonal employee definition the concept of people who come back for some significant length of time to the same employer on a regular basis -- and that should be included for some purposes -- I don't particularly have a problem with that intent, with the exception of certain circumstances like the farming one, although I suspect there are others that we haven't been able to think about yet. The tourism industry comes to mind, and some aspects of the retail industry and certain summer employment projects, for example, spring to mind. I think of the failure to give some context to that definition of seasonality. The intent is to capture an employer who uses seasonal employees in a significant chunk of the time, and it's really the same people coming back.

When I was a student, I was employed at Dominion Stores every Christmas to capture the Christmas rush. Suddenly, I'd be part of the count on this basis. I'm not sure that's really fair in terms of the employees who are there or the employer, to include someone who is just there for a couple of weeks as part of the workforce, as someone who needs to be represented in terms of coming up with the plan and all that. I have some problems with the exact wording and the failure to limit, although I think the concept of trying to get at the issue is not a mistaken one; but because of those problems and the ones we have identified in our caucus, we'll have to oppose this.

Mr Fletcher: Again, some of the arguments that have been put forward -- that this is going to be the downfall of the Ontario economy -- as a government I think we've heard that more times than enough with some of our other legislation that we have put through. As for the seasonal people who are being used, we believe that in order to capture the true makeup of the Ontario workforce we must capture all people who are being employed at certain times of the year. If there is some form of systemic discrimination going on or if there are people who are always being hired at different times, then I think it's something that people should know.

Once industries and employers collect the information, the information can be used in the form of training, in the form of how they recruit, how they advertise. There are many, many cultural newspapers that don't receive the advertising for employment opportunities that the mainstream newspapers are receiving. Perhaps that will start to change also.

Mr Curling: I just wanted to bring to the attention of the parliamentary assistant, again, in regard to the seasonal workers who are being drafted, recruited, or whatever word we want to use, from outside of Ontario, as a matter of fact, most of the time outside of Canada, and my colleague Mr Murphy had made the point, it will skew the process, because the statistics which are taken from Ontario within certain geographic areas are being compared to what's in the workforce within Ontario, when what we are looking at, and I hope the parliamentary assistant understands that, is that you're using a population or a count that is outside of Ontario to staff the workforce within and you're counting that. It will skew the workforce, it will skew the whole process of what you're trying to do.

It's not a matter that we are seeing systemic discrimination. It has nothing to do with systemic discrimination, talking about people who are employed -- and I mean drafted outside, and that is why it does not encompass the feeling and intent of what is being done. The farmers are complaining on that. They're going to be making out reports and forms that are almost inconsistent with what you want to do. I just want to make that point and hope that it is driven home to you, that this what we're trying to do, to try to make this thing effective and fair.

Ms Akande: I wanted to ask why in fact the amendment is not focusing on the population within the occupation. For example -- I don't know whether this question is appropriate, but I'm willing to withdraw it if someone says otherwise -- I would want to know why this amendment wouldn't focus on something to the extent that where a farming operation employed seasonal workers those seasonal workers not be included.

Interjection.

Ms Akande: Oh, sorry.

The Chair: Very well. There are no further speakers. We're ready to vote on this matter.

All in favour of the amendment? Opposed? Carried.

Subsection 3(1), Liberal motion.

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Mr Curling: The Liberal motion here is to section 3(1). We move that subsection 3(1) of the bill be amended by striking out the definition of "employer" and substituting:

"`employer' means any entity or person, whether or not incorporated, that employs one or more individuals and a person who regularly engages the services of others on a fee-for-service or commission basis and as defined in the Employment Standards Act and in relation to construction projects includes an owner as defined in the Occupational Health and Safety Act."

Do you want to speak to that, Mr Murphy?

Mr Murphy: Sure. The intent here is twofold. You'll note that the wording is slightly different as read from what's printed, and that is appropriate. The intention here is remove the common law uncertainty. In addition, the Employment Standards Act reference is to get at the issue of related employers. It maintains the reference to the Occupational Health and Safety Act.

The intent is to increase certainty, keep the power to define "employer" within the act and not put it in regulation and to attempt to get at the issue of related employer. I know the government has a motion to that effect. I think that with an amendment that allows for more plans, a related employer provision is appropriate, and that's what this intends to do.

The Chair: All in favour? Opposed? Defeated.

Subsection 3(1), PCs.

Mrs Witmer: I move that the definition of "employer" in subsection 3(1) of the bill be struck out and the following substituted:

"`employer' means an employer as determined in accordance with the common law and includes any entity, whether or not incorporated, that employs one or more individuals, a person who regularly engages the services of others on a fee-for-service or commission basis, and in relation to construction projects includes an owner as defined in the Occupational Health and Safety Act."

Now, what we have attempted to do here that is a little different from the other two is that we have defined "employer." We have, however, modified the definition by striking out "a trustee and a receiver" in the fifth line. We have also struck out "or such...as may be prescribed by the regulations" in the eighth and the ninth lines.

As has been indicated this morning, trustees and receivers are required, under the provisions of the Bankruptcy Act, to act in the best interests of the creditors. Certainly, obligations that are imposed on the trustees and the receivers under the act will require them to act in a manner which may not be in the best interests of the creditors and which may have the effect of reducing the creditors' entitlement. We believe that these contradictions cannot coexist.

The reason we've taken out "or such...as may be prescribed by the regulations" is to ensure that the definition of "employer" cannot be changed by regulation at some time in the future. Those are the reasons for our modifying the definition of "employer."

The Chair: All in favour? Opposed? Defeated.

The next section 3(1), PC again.

Mrs Witmer: I move that subsection 3(1) of the bill be amended by adding the following definition:

"`small employer' means an employer in the broader public sector that has fewer than 100 employees or a private sector employer that has fewer than 100 employees."

This amendment adds a definition for "small employer." If we had listened carefully to the presentations, there were several requests made by the presenters that we would give some sort of definition to small employers for both the broader public and the private sector. That's what we have attempted to do. This is going to be a companion amendment for our 6(2).

Mr Murphy: Just a point of clarification: 6(2) is to raise the threshold from 10 to 50?

Mrs Witmer: Yes, it is.

The Chair: All in favour? Opposed? Defeated.

Subsection 3(3.1), government member, Mr Fletcher.

Mr Fletcher: I move that section 3 of the bill be amended 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."

Under the Labour Relations Act of Ontario and the Ontario Labour Relations Board, they have the authority to declare that two or more related employers are to be treated as one employer for the purposes of labour relations. This amendment is also providing that if the labour relations board has made such a declaration, the employers will be treated as one employer for the purposes of this bill also. This ensures some consistency between determinations of employer status under the Labour Relations Act and also the determinations of employer status for employment equity purposes.

Mr Winninger: I have a question around the amendment to subsection (3.1). I might direct a question to ministry staff in this regard. I'm quite pleased to see this section which will deem employers related for the purposes of this act. The reference, however, is made to the Labour Relations Act and my understanding is that the Labour Relations Act only governs unionized workplaces and, given that unionized workplaces represent something less than 40% of all workers, I'm wondering whether there might be any hurdles to extending this definition in some way to encompass employees who may work for related employers but do not come under the Ontario Labour Relations Act.

Mr Bromm: I guess I'll start the response. First, I can clarify that the section here is meant to capture the labour relations board declarations because in this case a declaration would have already been made and so no determination would then have to be made by the Employment Equity Commission or Tribunal.

The difficulty with the non-unionized environment is of course that, for example, in the Employment Standards Act scenario, it's a retrospective definition that applies only after certain events have occurred and in that case you have the employment standards officers or the employment standards branch which are able to make that declaration. But it is not for future events, it's to cover past events such as the failure to pay wages or the failure to apply severance pay. The difficulty of having that here would be how would that determination be made for the non-unionized environment, under what circumstances and who would they then go to, because it would not be retrospective.

The other reason why the declaration has been made here for unionized environments is again to ensure that the bargaining agent has the same rights with respect to representing its employees for collective bargaining purposes as it would have in developing an employment equity plan under this act. In the non-unionized environment, we don't need to ensure that same protection because there isn't a bargaining agent and those employers may very well be captured by the definition of "employer" in any event. Kathleen may wish to add to that.

Mr Winninger: I was just noting, before she does, that elsewhere in the amendments we seek to empower non-unionized workers in participating in the preparation of a plan. So this would seem to me to be a logical extension of that kind of thinking.

Ms Beall: I don't have anything further to add to the explanation that was given by Scott.

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Mr Winninger: I respectfully request unanimous consent to stand this matter down so that the ministry could at least look at the possibility of an extended definition that would encompass employees who don't come under the OLRA.

The Chair: Agreed? We'll stand this item down.

Next, subsection 3(5).

Mrs Fawcett: I move that section 3 of the bill be amended by adding the following subsection:

"(5) A farming operation in which a significant portion of its workforce comprises seasonal employees employed for a short duration of the working year shall be exempt from the application of this act."

I have moved this because, in consultation with some farmers and with the one farm organization, they in fact did not realize that they would be included in this bill or with the significance of it in farm-related activities. They are right now trying to study it further. Of course, time is of the essence because we expect tomorrow would be the last day and so they are trying to really look into it as quickly as possible.

In speaking to them, they really feel that there is a problem here with the farming industry. Farming, you know, is the only industry that recruits from abroad for its seasonal labour. The recruiting is done by the host country, not the farmer/employer, so the farmer does not usually have a complete say in who the employees will be because they are in fact sent by the host country. It is, I think, very difficult then for a farmer to abide by all of the regulations and rules that might apply to such a farmer who would in fact be employing just for a short period of time during a very crucial time frame usually.

They need committed employees who will stay with the job to the end because, as we know, a product that is left on the vine too long, on the tree too long, or whatever, can really result in financial loss to a farmer. I really would ask that you consider this seriously and really vote in favour of this amendment that would exclude the seasonal workers from the bill.

Mr Fletcher: In addressing that concern with section 50 of the act, paragraph 5, it talks about the Lieutenant Governor in Council governing and adapting the application of this act, subparagraph iii, "as it applies to particular industries or sectors of the economy which in the opinion of the Lieutenant Governor in Council cannot be properly accommodated through the provisions of this act because of unique situations in the industry or sector."

That portion of the act does apply to not just farmers, but other sectors of the economy where the implementation of employment equity may be a problem because of the difficulties or differences in their employment practices to conform with the act. If the farm community wishes to be exempt for that reason, that's where they would be addressed.

Mrs Fawcett: Each farmer, then, would have to apply to the Lieutenant Governor.

Mr Fletcher: No, not --

Mrs Fawcett: How does that all work? Is it in the regulations?

Mr Fletcher: No, it's industries or sectors. It's not each farmer would have to apply, but the farming industry or the agricultural sector.

Mr Curling: What are the numbers?

Mr Fletcher: Subsection 50(1), subparagraph 5.iii.

Mrs Fawcett: Tell me, how would that happen? You don't have a head office somewhere where they could apply on behalf of all Ontario farmers.

Mr Fletcher: From what I understand from any of the members who have been in touch with the farming association -- got in touch through the OFA to see if they agreed with this legislation or not -- it was the OFA who spoke to the farmers at that time when you were asking the question. There is a route and the route could be --

Mrs Fawcett: In speaking to the OFA just before I came back to committee, this is the first thing they have knowledge of it. They have not thought this through or talked to anyone or had any input at all and they are very concerned. Please -- the OFA, while possibly it would like to represent the 60,000 farmers out there -- there are only right now 20,000 farmers who are represented by a particular farm organization. My question still stands: How do they get exempt from this, if in fact they can?

Mr Fletcher: If the farm associations -- as you say, you got in touch with the OFA to find out what its thinking was with this legislation. You didn't go to each individual farmer to find out, you went to the OFA yourself.

Mr Curling: She just did that.

Mr Fletcher: That's right; that's what you did to find out what farmers think. The OFA could approach the government, or the government could exempt farm people from being in this legislation, from being affected by the legislation. It all depends on their sector and on their employment practices, according to section 50.

Mrs Fawcett: I don't feel that your answer is satisfactory.

The Chair: I'm sorry, Mrs Fawcett. I'll put you on the list if you want to go back on.

Ms Akande: I appreciate the use of section 50, and let me tell you why, in relation to your particular amendment, because that is in fact what we're discussing. Your amendment, at least as I read it, seems to apply for the exemption of the farming operation because of a practice that they will bring in imported workers for seasonal workers and it doesn't seem appropriate, as you have argued before, to keep these numbers.

We don't know, though we know that the practice is widespread of bringing in seasonal workers in this way, whether all farmers do it, whether all farmers who do that don't also have a large complement of regular full-time workers. I think to assume that we're going to remove farming from the obligations of this particular bill would be to leap on the basis of an assumption that we're not prepared to make right now, because we don't have that information.

I would think it would be more effective, if you'll permit me, from your point of view of a motion -- and this is not necessarily implying that I can support it -- I would rather suggest that you move towards exempting from count the seasonal workers, because then it doesn't make an assumption about all farmers and the number of regular employees they have. Failing that, I think we have the ideal solution in the regulations, which also allows you time to in fact continue consultation with the farming association and then to make a more thorough application towards their omission.

Mr Curling: It is evident that this bill itself, this legislation, hasn't done its work properly in consulting because I think what it is saying here is that, "Really, we don't know what the farmers are thinking and what the farmers' composition is all about so therefore, because we don't know, everything we don't know we're going to put in regulation." That's why we have this long list: "Until we know, let us put the power within a couple of people around the cabinet table. As it comes up, we will make up the rules as it comes along."

Today we've found out, like the apple pickers have this kind of concern -- so just slide that in. Tomorrow, we may have the grape pickers and let us do it that way. That is why we argue against the regulations to deal with that situation. It is quite appropriate. We know that most of the other farmers, if you want to call wheat farmers or so, employ more machines than people. This is actually where people in numbers are being recruited and the case is well made that the fact is, if you're going to plant those individuals in the legislation, it's important to have the statistics and the survey done, and if other people from outside were to contribute to that, it would skew it all. So we're saying don't leave it to regulations. Put it in the bill and exempt them from that. I think it's more appropriate to do that than say: "Well, you know what? We didn't do our homework. We don't know what's out there. We don't know what other group. So let us put it in the regulation because we don't know."

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I ask you to have a legislation that is effective -- that's why we talk about weak legislation and effective legislation -- that it's not all buried in the regulation, unwritten. There's no regulation yet written on this one. You just thought about that.

Mrs Fawcett: I appreciate Ms Akande's words, but in looking at the very first words, "A farming operation in which a significant portion of its workforce comprises seasonal employees," it is just referring to a particular farming operation, because not all farming operations would have a significant portion of its workforce seasonal from offshore. We know that. For instance, in a dairy operation, that might not apply. I don't think it would. I think maybe what Ms Akande was referring to really would be looked after there, because it is referring to the particular harvest-type operations that require the seasonal people to be brought in from offshore.

Mr Fletcher: Again, I'm just saying I don't think we need this amendment in the bill because section 50 does clarify it. But, again, using your own arguments, we are still out, and when we are still going to be consulting with a lot of the groups that are affected by this legislation, the farm community could be one of those groups, should be one of those groups. To come in with a piece of legislation that effectively cuts them out of everything without even asking if they want to be involved -- before consultation you're already exempting them from a piece of legislation, and you didn't consult with them whether or not they wanted to be involved in this legislation. You just phoned the OFA, got an answer from the OFL -- OFA -- and came with an amendment --

Mr Murphy: The OFL?

Mr Fletcher: I almost said OFL -- that is brushing every farmer in the province of Ontario. That, to me, is not the consultative process --

Mrs Fawcett: I guess I would like to know the proof of your consultation with the farmers to have them included.

Mr Fletcher: I think what I'm saying is that we will continue. We do have some consultation processes that are going to be continuing up until October 29 to get some of the definitions, to get some of the other parts of the legislation more firmed up. What we will probably be doing is consulting with farm groups and other industries and sectors that are going to be affected by this.

Mr Winninger: I just want to add that I find this amendment as drafted extremely vague. I don't know what "a portion of its workforce" is. Is that 1%? Is it 2%, 5% or 10%? It also talks about "a short duration of the working year." I don't know what a short duration of the working year is. So I would agree with the parliamentary assistant. The best way to deal with these kinds of specific situations is through the exempting power under section 50, which would be administered through the regulation.

Mrs Fawcett: It's my understanding that a working definition of "seasonal employee" is being decided on or being worked on, and that's why I didn't put significant numbers on it, simply because it may not fit with the definition that is going to be decided on, I think maybe in terms of the farm labour legislation or whatever. That was my reason for not putting significant numbers on it that would then have to be changed again after everybody agrees on the definition of "seasonal."

Mr Winninger: It appears to me then that Ms Fawcett does appreciate there is a consultation going on and that it would be premature to vote on an amendment that is as vague as this one.

Mrs Fawcett: And premature to maybe include them before we even know what the definition is then.

The Chair: Very well, there are no further speakers to this amendment. Therefore, I'm ready for the vote.

Mr Murphy: Recorded vote.

The Chair: A recorded vote.

Ayes

Curling, Fawcett, Murphy, Witmer.

Nays

Akande, Carter, Fletcher, Harrington, Malkowski, Winninger.

The Chair: That motion is defeated.

Shall section 3, as amended, carry?

Mr Winninger: On a point of order, Mr Chair: Subsection 3(3.1) was stood down at my request.

The Chair: That's right. We'll come back to it.

Mr Murphy: Back to 2? Are we ready for that?

The Chair: We could go back to section 2. Are people prepared to go back to section 2? Okay.

Mrs Witmer: Did the government respond?

Mr Murphy: Yes, I think Ms Harrington had asked a question in relation to the issue I raised about "treated, hired, promoted" in section 2 and the government was going to give some indication of the logic for the wording and what it thought about it.

Ms Harrington: I had asked that staff go back and look at this and bring a rationale to us. I think it's very important. Are you prepared at this time?

Ms Beall: During the lunch break I made inquiries of the senior people involved in the drafting of the bill when it came in for first reading and I'm advised that there was no intention to create any distinction in the meanings between that found in section 1 or section 2 or further on. There's no intention that the words are to mean something different from what you find in the other sections.

Ms Harrington: Then why are they different? Can we not use the same words?

Ms Beall: At law, you can use the same words if you choose. Whether you use the same words is not for me to say, obviously.

Ms Harrington: Does that satisfy Mr Murphy's concern?

Mr Murphy: No. I think I explained this to some of the staff over lunch. The "treated" language I expect comes from the Human Rights Code, which says, in various sections but specifically the employment sections, "Every person has a right to equal treatment with respect to employment without discrimination" because of various listed grounds. The treatment concept in the code I think encompasses the range of employment activities from, I think, recruitment, hiring, promotion, retention. So in my view you're either "treated" in employment, which would include all those four, or you delineate the four and get rid of "treatment." It's redundant, it seems to me, and if you put redundant words in legislation, you're guaranteed someone's going to find a meaning for it that is one you didn't expect.

Maybe it's in section 1, and I can't remember whether we passed section 1 yet or not either, but frankly my view would be you use "treated" there because it refers to the Human Rights Code and that's the concept you're picking up and you just leave it as "treated" in that section, and then once you get to your specific employment equity principles you use your four delineated terms as you propose to do through the rest of the bill of hiring, recruiting, promoting and retention and you make that consistent, as, for example, in paragraph 1 of section 2 you delete "treated" and make sure you stuck in whatever the consistent wording is. That would be what I think would be a sensible way to draft the legislation.

I don't think this is a partisan issue. I'm just trying to make it a sensible bill.

The Chair: Mr Murphy, we actually had a different section 2 and section 1 as well, so you're speaking to both parts? Are you proposing any amendment there in subsection 1(2)?

Mr Murphy: Yes. Let me pose an amendment to section 1 to amend subsections (2) and (3) so that the new wording is:

"(2) Aboriginal people are entitled to be treated in accordance with employment equity principles.

"(3) People with disabilities, members of racial minorities and women are entitled to be treated in accordance with employment equity principles."

The Chair: All right. Mr Murphy will write that. Shall we have the debate from the others or wait for you to speak to this further, or have you done that?

Mr Murphy: I gave my explanation beforehand.

Mr Fletcher: Mr Chair, I'd like to request a five-minute recess.

The Chair: Very well.

The committee recessed from 1501 to 1513.

The Chair: We are reconvened. You had placed an original motion. I would ask you to withdraw that.

Mr Murphy: Yes, I withdraw it. This is the motion I'm moving. I think it's been circulated now in a handwritten format, and I apologize for any illegibility.

The Chair: Very well. I think people have seen and read that. Further debate? Are we prepared for the vote? Mr Fletcher.

Mr Fletcher: Thank you for the time to discuss this. In reading the amendment we think that Mr Murphy has come up with a valid piece of wording -- well, valid as far as "treated" is concerned -- and we do recognize that fact. What we do have a problem with is the way that your amendments are written. We do have a government motion to move to that section as far as the word is "treatment."

We also have to look at the consistency of the wording throughout the legislation. That's also another reason why we have a problem with your wording as far as the amendments are concerned.

But we do recognize the importance of what you're saying and we do recognize the fact that sometimes it takes three parties to come together and make changes, and again we'd like to thank you. We can't support your amendments, but we will be introducing wording which will in effect be consistent throughout the act.

Mr Murphy: Just briefly, and then we can vote on it, I appreciate what you say, although I think it's always an interesting view of cooperation of the three parties when the government votes against my amendment. But I'm prepared to accept the good intentions.

Let me say that the reason I did it this way is because the structure of these two subsections, (1) and (2), is that you set up the entitlement to treatment in accordance with employment equity principles in subsection (1) and in subsection (2) you define what those principles are.

So the treatment is the concept that comes, as I said, from the Human Rights Code. Then when you say, "Well, what is an employment equity principle?" you go to subsection (2) and you say, "Well, that's the removal of systemic barriers, the analysis of that in the context of hiring, promotion, retention and recruitment." So you fill in the employment equity principles concept. Treatment, in that sense, stands alone.

In a sense, what you're saying is that you're entitled to be hired in accordance with employment equity principles if you leave "hired" wording in section 1. Then you're saying you're entitled to be hired in accordance with employment equity principles, you define those as four things, so you're entitled to be hired in accordance with the promotion of -- I think there's a logic to keeping it as a treatment in accordance with certain principles, and then in section 2 define what those principles are and include the wording that you are proposing.

That's the rationale. You have caucused and decided not to vote for it. That's fine. I'm prepared to just go on with the vote.

The Chair: All in favour? Opposed? Defeated.

Mr Fletcher: On that same section, subsections 1(1), (2) and (3), we have a government motion. I will read it right now for the record.

I move that subsections 1(2) and (3) of the bill be amended as follows:

"(1) By inserting after `hired' in the second line of subsection (2) `retained.'

"(2) By inserting after `hired' in the third line of subsection (3) `retained'."

The purpose of this amendment is to certainly address Mr Murphy's objections or his concerns as far as the bill is concerned, and the new sections would read:

"(2) Aboriginal people are entitled to be considered for employment, hired, retained, treated and promoted in accordance with employment equity principles" and

"(3) People with disabilities, members of racial minorities and women are entitled to be considered for employment, hired, retained, treated and promoted in accordance with employment equity principles."

In that sense, I think we are hitting a balance.

Mr Murphy: Just briefly, I guess this doesn't really solve my problem, because while you're adding recruitment, it doesn't make the language consistent with retention. You're maintaining the word "considered" for employment, which isn't included elsewhere. If the purpose is consistency, it doesn't achieve it. While I appreciate the effort, the half a loaf isn't the full loaf, so I'm going to vote against it on that basis.

Mr Fletcher: Could we have a legal person explain more about this amendment?

Mr Curling: Why?

Mr Fletcher: That way, you could have a copy of it so you can read it.

The Chair: Okay, very well. Ms Beall.

Ms Beall: There are other sections in the act which set out the obligations with respect to employment equity, and you will notice in fact that there are motions presently in the package, the government motions, to ensure consistency of those words. When you look at those terms, if you were to refer to just "retained" in section 1 and remove the other terms which are found in section 1, there is the possibility that it may restrict the interpretation of the other terms that you find in the other sections.

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The Chair: All in favour? Opposed? Carried.

Shall section 1 carry, as amended? All in favour? Opposed? That carries.

Section 2, Mr Murphy.

Mr Murphy: Is there a government amendment?

Mr Fletcher: Yes, section 2, paragraph 1. You'll need copies of this, but I will read it.

The Chair: Is this a new motion, Mr Fletcher?

Mr Fletcher: Yes.

The Chair: Does it relate to the same language we passed in section 1, or different?

Mr Fletcher: Yes.

The Chair: Okay, then we'll take this one.

Mr Fletcher: I move that section 2 of the bill be amended by adding after "hired" in the fifth line of paragraph 1 "retained."

It's the same wording that was used in section 1.

Mr Murphy: Briefly. Again, if the intention is consistency, this doesn't do it because I don't see the word "recruited," for example. The intention in the latter part is, for example, the government has amended paragraph 3 of this to say that it's hiring, recruiting, retention and promotion. I don't see all of those things reflected in here. You have "treatment" in here, which isn't elsewhere. There's "considered for employment," which actually isn't elsewhere. If the intention is consistency, it doesn't achieve it. That's all I'd say. I vote against it, and we can move on.

Ms Akande: Yes, "considered for employment" is in section 1 and when you look at it, it says "every aboriginal person," and they go on: "every person of disability, every person of racial minority, every woman." They do not do the recruiting. The employer does the recruiting. They have a right rather to be considered for employment, and that is why that part states as it does, and then they have "hiring, retention, treatment and promotion."

Ms Harrington: So it is parallel.

Ms Akande: Yes. It's just the difference between the employer doing the recruiting and the employee having the right to be considered for employment.

Mr Fletcher: That's fine, if the point's been made. I was going to ask Kathleen if she would like to expound further, but I think Zanana did a good job.

The Chair: All in favour? Any opposed? Carried.

Mr Murphy: I have an amendment to section 2.

Mr Curling: Another amendment?

Mr Murphy: Yes. It's on section 2 of the bill and it's paragraph 3, and again it's --

Mr Fletcher: Mr Chair?

The Chair: Mr Murphy has an amendment on paragraphs 2 and 3. So when we get to 3 we'll deal with it.

Mr Fletcher: I'm sorry, okay.

Mr Murphy: I move that section 2 of the bill be amended as follows:

(1) By striking out paragraph 2 and substituting "Every employer shall in good faith make all reasonable efforts to ensure its workforce, in all occupational categories and at all levels of employment, reflects, to the greatest extent possible, the representation of aboriginal people, people with disabilities, members of racial minorities and women in the community."

(2) By striking out "and women" in the seventh line of paragraph 3 and substituting "women and members of all groups that are subject to systemic discrimination contrary to subsection 5(1) of the Ontario Human Rights Code."

The first part of the amendment really speaks to some of the points made by the Canadian Civil Liberties Association to us in their submissions, and it really comes down to sometimes a fine distinction but, I think, an important one. The paragraph 2 as it stands now obligates as a principle that the workforce shall reflect in exact proportion to that which is in the community, and what we're trying to do by amending it is articulate that the idea is to ensure that we do everything possible to make sure that reflection happens, but if the individuals who are subject to this decide for reasons entirely of their own not to participate, once the barriers are removed and once there are positive measures, it's not our role to force people to do that. It's sometimes a fine point, and I agree that it is, but it really comes to the civil liberties concept, and I'm picking up very much on the recommendations of Mr Borovoy on behalf of the civil liberties organization.

So what you're focusing on is both the good faith and reasonable efforts, and it's to the greatest extent possible, but it leaves the freedom of individuals to choose not to enter a profession provided that all the barriers are removed and provided all the positive measures required are in place. If they choose not to make up their percentage of that workforce, then that is somehow not a problem. People should continue to have the right to choose. What we're trying to do is remove every barrier to that systemic discrimination, to the inequity.

The second part of it really goes to the issue of both the francophone community, to some degree, and more so to the gay and lesbian community because what we're focusing on here is to say that there is a value in having employers, when they're doing their analysis of their workforce and their workplace, when they're looking at the barriers to people fairly participating and when they're looking at the positive or perhaps soon supportive measures that might be put in place, they should look at it not from just the perspective of the four designated groups, although that is important, but also from the perspective of other people who are subject to systemic discrimination.

It was very clear when the Coalition for Lesbian and Gay Rights in Ontario came before the committee that they thought it appropriate that gays and lesbians be included in the bill. The two rationales articulated by the minister for not including the gay and lesbian community, as an example, were the self-identification problem and the statistics problem.

This, I think, is a way to go around that concern in this way because it isn't going to, and there's a companion amendment later, require that workplace surveys be done on the basis of gay and lesbian identification, nor is it going to require hiring by goal setting of groups other than the designated groups, but it is going to require an analysis of the workforce, an analysis of the workplace, of the barriers to break down some of the harassment and the barriers to participation.

If you recall, Mr Mulé, on behalf of the Coalition for Lesbian and Gay Rights, spoke quite articulately about the need for qualitative measures, and really that's what this amendment is focusing on. It's to get at bargaining agents, employers and other representatives of workforces to look at what they do that sets up barriers to the full participation of gays and lesbians, but it's not exclusively gays and lesbians because it's anyone who faces systemic discrimination as defined in a prohibited category in subsection 5(1) of the Human Rights Code which could then include francophones. It could include, for example, racial minorities or people because of the basis of their nationality.

So it starts also to address what we've termed I think somewhat inappropriately but none the less the subgroup or class issue within the designated groups so that for example, if you're analysing why people of the Hindu faith cannot participate in your workforce for whatever reason, that's the kind of analysis that can be put into this. It's not meant to increase the burden significantly on employers; it's meant merely to say: "Well, you're going through the process of looking at it from the perspective of designated groups. There's absolutely no reason not to look at it from the perspective of others who face systemic discrimination," and that's why that word's in there. It's key. It's not a blanket kind of "analyse everybody," but it's systemic discrimination so that you'll be looking at people who face discrimination from a system perspective and not just an individual perspective.

So that is the rationale behind both of those provisions. They're put together. If the government members have a problem with the first part, I'm more than happy to separate (1) and (2) out if that's appropriate, but that's the intention of both of these amendments, and I hope I can get government's support.

Mr Fletcher: As far as the Liberal amendments are concerned, I have listened for three weeks now to the members of the opposition saying: "This bill is weak. It doesn't do what it's supposed to do. It's too vague." And then I read, "in good faith make all reasonable efforts" and "to the greatest extent possible, the representation." If you want to know what "weak" and "incoherence" and "ambiguity" is all about, I think this Liberal motion is really hitting home exactly what that means. Not only does this weaken the legislation and not only does it leave employers and employees in the air as to what "In good faith make all reasonable efforts" are, and what "To the greatest extent possible to reflect our society" are, people are just going to be going crazy with this.

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From what you've been saying for the last three weeks about Bill 79 and you come forward with a substitute motion like this, I really do believe that you're showing your true colours as far as Liberals are concerned that you can't even find the third side of the fence. You're all over the place on this legislation, and this just definitely starts to prove that you're all over the place and you don't even have a stated position as far as employment equity is concerned.

Not only is this weakening the legislation substantially for the people it's going to affect -- and now I can understand why you didn't vote for the legislation in the first place when it was introduced, because I don't really believe that your party does agree with employment equity.

Mr Winninger: As the amendment affects paragraph two of section 2, I agree with the parliamentary assistant that this does have the effect of diluting the wording of section 2 in the area of law, with which Mr Murphy is well acquainted.

If a lawyer isn't sure whether he's going to do something or not, he'll say, "I'll give it my best efforts," or "I'll make reasonable efforts to do that," and one can never be entirely sure whether the objective will be achieved or not, and this is too important an issue to leave any ambiguity surrounding the thrust of the legislation.

As his amendment affects paragraph 3, I would suggest that it's extremely broadly framed. I mean, reference is made to systemic discrimination contrary to subsection 5(1) of the Ontario Human Rights Code. Well, this amendment is somewhat off the wall as far as I'm concerned because we really haven't had a lot of evidence from groups representing people with a record of offences or a family status or a creed necessarily.

I'm not sure why Mr Murphy introduces the amendment in such broad terms and then talks about gay and lesbian rights. I think there's a certain sleight of hand there and I'm not quite sure why he's doing that. I don't make any comment on his arguments around the right of gays and lesbians to be included in this legislation, but I find the amendment objectionable and therefore I'll be voting against it.

Mr Curling: I really found that the parliamentary assistant is coming towards my colleagues -- and the whole inception of this clause-by-clause is to make the best legislation possible. To make the kind of attack that Liberals are all over the place, what we're trying to do is to try to get them -- they're like Jell-O on a wall, as a matter of fact. We've tried to say to them that if you're going to deal with systemic discrimination, one of the principles of it all or the whole effort of it all is to identify where these things are to make it as inclusive as possible.

My colleague's motion is to make sure it's realistic and that it can be dealt with accordingly. Then, when he addressed it, you said we're all over the place. You're all over the place. As a matter of fact, we mentioned the fact about the farmers, and they're saying: "Listen, we haven't even talked to them yet. Give us a chance. Let us put it in regulations, and when we get a chance to speak to them, then we'll do so."

Now, this one is to say that other people have come before us -- it was Mr Winninger who said that. When was it people came before us and said all this? I'm sure you were listening. I know it's rather intense and it's difficult at times to listen constantly each day for seven hours, but I recall many, many groups that came before us stating that -- listen, gays and lesbians came and spoke about how they are being excluded. Francophones came and said they have been excluded. You made a lot of flimsy excuses that we can't find statistics. There are statistics all over the place to say to you that these people are being shut out. Then when we say to you, "Here is a group of people you may put in if you don't want to be so deliberate about it," that is to say, wherever it is possible, if we see any kind of systemic discrimination contrary to the Human Rights Code or so on, we include them, you say we're all over the place.

I would say, having said all that emotional part about it, which makes a lot of sense, the fact is that you could consider this, because Ontario would be a better place if we realized that we made, again, this employment equity legislation inclusive, and stop hiding behind regulation and stop hiding the fact that I did not hear it, because it was said.

Mrs Marland: Of course, I'm very tempted to ask my colleague Mr Winninger if when he speaks as a lawyer and says all lawyers do that, he is speaking with the authority of all lawyers as to how they practise law.

Interjection: Just in London.

Mrs Marland: I thought your comment was very interesting, David.

The problem with all of this, of course, is the fact that the federal Human Rights Code went through the same problems and deliberations as we did while we tried to amend our Ontario Human Rights Code to comply with the federal Charter of Rights and Freedoms. As soon as you start naming more and more and more groups, does that mean in any federal or provincial statute, if you're not named, you don't exist? You see, that's where I think we get into a great deal of difficulty with any legislation where you start naming individual groups. I can assure you, there is going to be a group by some description somewhere that is going to come forward and say, "Oh, but this doesn't apply to me because I'm not addressed in this legislation and I haven't been referred to in any of the debate."

The fact is, if these statutes are really well drafted, well written, you don't have to name every single little group. That's what upset me about the term yesterday, when we were talking about classes of groups. We've gone from designated groups to identifiable groups to subgroups, to yesterday when we were talking about classes. Are we not talking about people who live in Ontario, and as I say, if we're not on the list, does that mean we don't exist?

That's the problem you have every time you start trying to change the wording. I don't approve of the wording in any case the way it's drafted, but I don't approve of complicating it more and more by saying "members of all groups," and then there's a rider on which those groups are, which is the last part of the sentence in paragraph 2(2). It isn't even all groups; it's only the groups that are "subject to" etc etc. Even then, it's only the ones who are contrary to section 5.1 of the Ontario Human Rights Code. It's ridiculous, because it just doesn't work. If the Liberals are saying that they want to talk about something that's inclusive, then they can't start breaking it down the way it is being broken down in paragraph 2(2).

Ms Harrington: I find it truly remarkable what we've heard from Mr Curling. I thought it was very clear over the last three weeks during committee that especially when presenters were here, Mr Curling would call that he wanted the bill strengthened, and he would say this over and over again. What his colleague has just put forward says the following: "shall in good faith make all reasonable efforts...to the greatest extent possible." Those words very clearly weaken this bill, and I am quite surprised that Mr Curling would even address this amendment, from what we have heard over the last three weeks.

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As for the Conservative Party, it seems they're very willing to make some nice, fuzzy, warm, motherhood statements about equality, but they really don't want any change, and that's what this bill is about: It is to make change in the workplace. We want to see this actually happen, and that's why we are addressing this.

Mr Murphy: Well, Mr Chair, I guess I can tell I've hit somewhere close to the bone because the amount of sophistry that goes up when this happens, it's quite incredible to watch.

Let me say first of all to the parliamentary assistant that I reject as entirely and completely untenable his assertions. It is absurd, contrary to logic and common sense, and here's why.

What we are talking about isn't a change to the principle. The principle, the goal, at the end of the day remains unchanged. The whole act is governed not by "that representation shall be." The whole act is governed by the removal of barriers and identification of measures to help out, and then progress towards goals. That is what the act is about.

To say that this weakens the act is to not know how legislation works. I've seen some evidence of that earlier from this parliamentary assistant in the lateness and now replacement motions and inconsistent treatment of definitions, and I see that, frankly, as evidenced by his comments related to this section.

This, as I said in my introductory comments, was related to the Canadian Civil Liberties Association's briefs; it picks up on their comments. It's interesting to see. I remember their submissions, and I know some of the members who were here from the government side do too. I could not have heard a more articulate and enthusiastic support for this legislation, one that we in this caucus shared and continue to share. And yet he said it's important to make this distinction from a civil liberties perspective. I at one point thought, and I guess I'm mistaken, that the NDP were in favour of civil liberties, of the concept of it, but I guess that suddenly --

Interjection: You're wrong.

Mr Murphy: -- that, like everything else, has changed in this new reality. I guess we have, again, given away that miracle, as someone has said recently.

Ms Akande: I knew the book would get in there.

Mr Murphy: One day.

The second part -- and, Mr Chair, I look at you and I think about your riding. I hope you are telling your caucus members about the effect that the voting against this second part will have in your constituency, because while it hangs by a thread, there are some important threads represented by this amendment. I hope you will do a quick lobbying of some of your caucus colleagues to encourage them to vote for it, because it's an important amendment. It expands the principle of the bill.

It was interesting to hear the comments from the government side because very little of it addressed this. They're running a bit scared on this issue, and I understand that. That's fine; that's the nature of politics.

Mr Curling: Only a private member's bill.

Mr Murphy: But I do object entirely to this partisan rhetoric that is irrelevant and just does not in any way address the substance of this amendment. I just wanted to get that on the record.

Ms Akande: If it hurts you to do it, why force yourself?

Mr Murphy: I see my friend the former principal Ms Akande saying comments, and I'm glad she's participating. I'm sure the years of teaching have caused her to interrupt at appropriate moments.

Ms Akande: I can identify the irrelevant.

Mr Murphy: Yes. And I hate it when they sit to the left of you. But let me just say that I think it's --

Mrs Marland: Touché.

Mr Murphy: I'd like to talk to my friend the marauder from Mississauga, Mrs Marland.

Mrs Marland: I'm a former principal as well.

Mr Murphy: Well, there you go.

The Chair: Order, please. We haven't much time.

Mrs Marland: I also used the three-legged stool, remember?

The Chair: Mixed metaphor.

Mr Murphy: I don't want to know -- well, never mind.

I do want to address her comments, and to this extent, in that she talks about how it's entirely inappropriate to name people in legislation. Well, that's kind of what this bill is all about. I mean, you have designated groups. I don't know how you designate groups without naming them. We're trying to expand, to be inclusive, to really get at systemic discrimination in all its forms, against everyone who suffers from it, and that's what this amendment, in its second part, is attempting to do.

My friend from London, Mr Winninger, I find his comments usually succinct and helpful. I thought he shaded a bit towards the sophists' camp in some of his comments, and I know he'll come back.

But I hope I can get your support. If not, I thank you for considering it, and guarantee I'll be using some of this in my re-election.

The Chair: Mrs Marland?

Mrs Marland: Oh, definitely. You wouldn't think for one moment I could let any of that pass?

The Chair: Absolutely not.

Mrs Marland: I really should ask Mr Murphy for his definition of "marauder." I'm certainly going to run and get the dictionary.

But naturally I have to respond to the member for Niagara Falls. I know that she would be anticipating my comment after her kindly reference to me as making warm, fuzzy, motherhood statements.

Ms Harrington: No, I said your party.

Mrs Marland: Yes, you said, "your party," and I was the only one here, and I'm very sensitive.

Ms Akande: A sensitive marauder from Mississauga.

Mrs Marland: The point is that I think it's very interesting how the debate this afternoon has evolved into quite a lot of partisan bashing around this table. It's certainly probably an indication of where we're going to be in the next two years, while the poor employers around this province are trying to help the employees in this province with this particular piece of legislation.

Frankly, I think I would rather leave the definition of who is making warm, fuzzy, motherhood statements that mean something to the electorate. I think the electorate will tell us in two years' time whether we mean what we say on behalf of the people of this province for the Progressive Conservative Party or whether the critic from the government benches this afternoon is going to still be there to make those comments after the next election.

I think that it's unfortunate, when we're debating what could have been a very important step forward in this province with an employment equity statute, that we're in the position that we are. As far as I'm concerned, I think, with this particular bill and the particular amendments that are being addressed here today by the government in particular, that the whole exercise is a waste of time and, as I said before, especially when you get down to the regulations. Why don't you just do it all by regulation?

The Chair: We'll move straight to the vote.

Ms Harrington: Mr Chair, could we request a five-minute recess, please.

The committee recessed from 1548 to 1555.

The Chair: We're resumed. Ready for the vote?

Mr Murphy: A recorded vote.

The Chair: On a recorded vote.

Ayes

Curling, Fawcett, Murphy.

Nays

Akande, Carter, Fletcher, Harrington, Malkowski, Marland, Winninger, Witmer.

The Chair: That amendment is defeated.

Moving on to a government motion, it's a replacement motion. Mr Fletcher.

Mr Fletcher: I move that section 2 of the bill be amended by striking out paragraph 3 and substituting the following:

"3. Every employer shall ensure that its employment policies and practices, including its policies with respect to recruitment, hiring, retention, treatment and promotion, are free of barriers, both systemic and deliberate, that discriminate against aboriginal people, people with disabilities, members of racial minorities and women."

The purpose of this amendment is to be consistent with the language amendments we have already made in section 1.

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

Mr Fletcher: I move that section 2 of the bill be amended by striking out "for recruiting, employing and promoting" in the second and third lines of paragraph 4 and substituting "with respect to the recruitment, hiring, retention, treatment and promotion of".

Again this is a language change, in keeping with the other changes.

Mrs Marland: It's nice to add a word that we don't have a definition for; it makes a lot of sense. Do you think the parliamentary assistant could take another try at telling us what the definition of that word is?

The Chair: Mr Fletcher, she was asking you.

Mr Fletcher: I'm sorry, I wasn't listening.

The Chair: A definition of the word "treatment," Mrs Marland, is that it?

Mrs Marland: You weren't not listening because I'm a woman, were you?

Mr Fletcher: Of course not.

The Chair: Mrs Marland, you were asking for the definition of the word "treatment."

Mrs Marland: Yes, please.

The Chair: Mr Fletcher, a definition of the word "treatment." Would you give one?

Mr Fletcher: Mr Chair, I'll defer that to Kathleen.

Ms Beall: The way one is treated is the way in which people -- for example, if someone harasses you, that's how they treat you; if someone fails to deal with you in a way the same as others, that's how they treat you. The word "treat" means how people -- I don't know how to say it except how people treat you. An example would be if someone harasses you, that would be how they treat you.

Mr Bromm: I can add to that a little just by saying that in addition to things like harassment and discrimination, treatment also extends to, for example, the obligation to provide accommodation measures. The manner in which you will treat your designated groups goes to those issues of accommodation, issues of flexibility around the designated groups.

Mr Curling: I just want to make a comment. As the parliamentary assistant wrestled with not saying anything about this and the policy person tried to define the word "treatment," it reminds me of the difficulty David Cooke is having with his educational bill now and all the people seeking to be treated similarly with funding; that he wrestles with that too.

It is also extremely important that my colleague, in raising the point about "treated," spoke about why it was there and not elsewhere in the bill; the inconsistency. We found this inconsistent, that having located it in the first part, we find out now you've going to have a whole bunch of replacement, you're going to slide in "treatment" now. You talk about how I'm all over the place. You're not even anywhere. We're trying to put this in here and we can't even find a proper definition of "treatment." It's unfortunate.

No wonder you have so much regulation. You can't find proper process in doing your legislation, so you want to slide it in the regulation and say, "When I come up with a definition sooner or later around cabinet, I will do that." I just want you to keep that in mind as we go through that bill, that we will be coming back very often to say to you, "Is that the reason you have the regulation, because you don't know what you're doing in the legislation?"

Mrs Witmer: I would have to express at this time my concern at the numerous words we're now using: "recruitment, hiring, retention, treatment and promotion." By including the word "retention," there certainly is the implication that these people would be given preferential treatment if there were layoffs occurring or there was downsizing taking place. I think employers would certainly hesitate to bump these individuals.

It becomes more and more obvious that this bill is giving some preferential treatment to people in this province. It's becoming very complicated. Why have we, out of the blue, added the word "retention" and now "treatment" everywhere? We're just asking for lawyers to have a field day with the legislation. There's going to be ample opportunity for test cases throughout this province on the various words being added here.

Ms Harrington: On that point, I'm wondering if our lawyer on staff or staff would like to comment with regard to the wording of this bill and how it can be applied and any problems.

Ms Beall: The reason the word "retention" was added was because that term is found in other parts of the bill dealing with obligations of employers with respect to employment equity. To assist with certainty as to its meaning, it was added to this section because it was wanted to be consistent with other parts of the legislation. That is why the word "retention" was added.

The reason the word "treatment" has been added, based on the motion that is now before you, was again in response to a recognition of the importance of the consistency of the wording in the legislation, which will facilitate in the interpretation of the legislation.

The Chair: All in favour? Opposed? This carries.

Mr Fletcher: I have another replacement motion to section 2.

I move that section 2 of the bill be amended by adding the following paragraph:

"5. Every employer shall implement supportive measures with respect to the recruitment, hiring, retention, treatment 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 Chair: Mr Fletcher, are you speaking to that, or have you spoken already in relation to the other matter?

Mr Fletcher: Just a minute, Mr Chair. Sorry.

This is being consistent with the language that we have throughout the legislation, and again it's housekeeping, recognizing the important contribution of the members of the Liberal Party, especially Mr Murphy and his recognition of some of the facts concerning the words that are used in the legislation. Again, this is more or less just so that there is consistency throughout the legislation. It has nothing to do with the fact that the legislation is flawed in any way, shape or form. It's just that it's listening to what the other party members are saying, the opposition members, and accepting some of their rationale.

Mrs Marland: Mr Chairman, do you know what I'm wondering? I'm wondering if the government is going to have to amend all its labour laws to make sure that any reference to employment in provincial statutes uses all these words for everybody else. I'd like to ask the parliamentary assistant if that's going to happen. Are we only going to use these words in terms of descriptions of environment for people working in this act, or are you going to amend all the other labour laws and refer to treatment, retention and so forth?

Mr Fletcher: We are here dealing with employment equity and this legislation is the only legislation we're dealing with as far as the language in it. We're not here to deal with employment --

Mrs Marland: Generally.

Mr Fletcher: -- in general, just employment equity.

Mrs Marland: No. I know.

Mr Fletcher: If the Minister of Labour is going to change something, that's up to the Minister of Labour.

Mrs Marland: But don't you think that you get very close to a fragile line when you start putting all of these words in one bill pertaining to people in this province who fall into four groups and you don't use the same language in labour laws that apply to everybody else in this province?

Mr Fletcher: We have attempted in this legislation to be consistent with other pieces of legislation that are already on the books in labour law and other areas. We have attempted to be as consistent as possible, understanding that this is new and different legislation.

Mrs Marland: Okay. Are you telling me that the other labour statutes in the province use words like "retention" and "treatment"?

Mr Fletcher: No, I'm not saying that.

Mrs Marland: No?

Mr Fletcher: I'm saying we have got to be consistent as much as possible.

Mrs Marland: What I'm suggesting is that if we looked at Bill 162 or 201 or 208 and so forth, we probably wouldn't find these words, "retention" and "treatment," in those bills.

Mr Fletcher: I'm not sure.

Mrs Marland: Well, I'm suggesting that. If you're saying you're trying to get something that's consistent, you've got to be able to say it is consistent. If it isn't, then tell us it isn't and just admit that these are special words for this special bill. That's fine. Say that, if that's the case, but I think somebody should be able to answer that question.

Mr Fletcher: I don't know if it's consistent with every piece of legislation. It is consistent with other forms of legislation, not only in its wording but also in some of the intent that is in the definitions and other things.

Mrs Marland: Mr Chairman, I wasn't going to do this, but I am going to do this.

Mr Fletcher: Then don't do it.

Mrs Marland: You've had -- is it two or three weeks of public hearings on this bill?

The Chair: We've had three.

Mrs Marland: You've had three weeks of public hearings. So what the government is trying to do with Bill 79 is make a difference to people who live and work in this province, particularly people with special challenges.

Well, this morning the former principal, as we affectionately refer to her, Ms Akande, did mention Jobs Ontario, and I want to mention Jobs Ontario this afternoon because I just want the committee to understand that it's all well and good for this government to bring forward an employment equity bill and do some political grandstanding with it, while really, at the back door of its ministerial offices, it's not looking after the people who are today asking for help.

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I particularly just want to bring to your attention two young men in my riding who have dyslexia. Because of their dyslexia, they can't go through the practical applications for the community action fund in the Jobs Ontario program. They've been looking for this funding and all they need from the Office for Disability Issues is help with making the application through a computerized system. They can't deal with any other format because of their dyslexia. I wrote to that minister on June 2 and today we are at September 8, and not only has that problem not been resolved, it hasn't even been addressed.

So I'm saying, "This is great; we've got this wonderful bill that's going to solve everybody's problems who has difficulty with employment in this province," and yet I have another case where a young man requires two hearing aids and the government gives him one.

The Chair: Mrs Marland, again I do this with trepidation, you understand.

Mrs Marland: Yes.

The Chair: We are dealing with an amendment here and I know that you're --

Mrs Marland: We are. And do you know what we're dealing with, Mr Chairman? We're dealing with the word "treatment."

The Chair: "Treatment," I gathered that, and I thought that perhaps you could focus a little better on this amendment, or a little more briefly perhaps.

Mrs Marland: I'm very well focused, because what I'm suggesting is that this amendment is dealing with the word "treatment," and I'm talking about the treatment of two of my constituents who have asked this government for help four months ago. They still do not have help, and guess from where: the Office for Disability Issues, the very office that is given the mandate to help these people who have specific challenges in their lives. This government goes around this province talking about how marvellous its Jobs Ontario program is and they can't even help this --

The Chair: Mr Winninger, on a point of order.

Mr Winninger: I know that you as Chair like to extend considerable latitude to outpourings such as this, and I'm not diminishing in any way the concerns of the member for Mississauga, but what I am saying is this: We could all sit around for the rest of the afternoon and free-associate about our constituency problems. The fact is that we're all here to deal with amendments to the statute and I'd like to see us proceed.

The Chair: We do too and we are encouraging Mrs Marland to do her best to focus on the amendment. I know she's touching on the words "treatment" and "disability," but for the benefit of moving this along, please do the best that you can.

Mrs Marland: I will get back to the amendment. The amendment says, "Every employer shall implement supportive measures with respect to the recruitment, hiring, retention, treatment and promotion of aboriginal people, people with disabilities," and that's the example I'm giving. I have an example where this government is ignoring the specific needs today of two people with disabilities in my riding.

Mrs Witmer: Three.

Mrs Marland: In fact three, but two in one particular case, and they need special treatment today. Perhaps the question I should be asking is: When you pass this amendment that includes the word "treatment," will I suddenly have a solution for the problem for these two young men in my riding and the third one who needs two hearing aids and the government will give him one?

Mrs Marland: Is this going to be a magical solution for these people today who are trying to access Jobs Ontario, your wonderful bonanza solution to all the problems in this province? If it's going to make a difference, I'll vote in favour of this motion. But what I'm saying is that you have a problem at your back door today that isn't being answered by your minister responsible for disability issues. It's a big show. It's not working today.

Mr Fletcher: No piece of legislation is going to fix every problem. I think we did hear from people in the public service who came here, who work for the government, and it was my question to them whether or not they were being treated fairly, and their answer was no. The government has a long way to go, and I think on all sides we're willing to admit that.

But then again, let us look at the treatment of people. It is not the position of this party to treat people as political objects and ask them to quit their jobs to go on welfare, such as your party did. We don't do that. What we are saying is that through the employment equity plan, we do hope to open some doors for a number of people who have had the doors closed. If there's a problem as far as accommodation is concerned, yes, this can address that.

Mrs Marland: I'm going to give the parliamentary assistant the advantage of my not dealing with his comment about whether or not our party encouraged somebody with a full-time job to go on welfare. I will do him the service of not taking him on in that issue, because I can assure you that if I were to take him on, I would win hands down.

What I would like to know, again, from this parliamentary assistant is, after you pass this motion, will you help two young people who today can't get help from this government without this legislation? If they could get the help that they're seeking, which we are told is available in the Bob Rae socialist government, they could in fact run an employment office for other people similar to them with the same problems. That is an example only of a fact that exists today.

You're asking me to sit here and vote on your amendment adding the word "treatment," and what I'm saying to you is, it's all superfluous. It doesn't mean anything. You're not doing anything with what you have announced in terms of a program that exists today in this province.

You have the Office for Disability Issues, and now you're going to pass a piece of legislation that deals with special supportive measures for people with disabilities. It sounds wonderful, but what I'm telling you is that today the Office for Disability Issues isn't working for people whom I know personally who are challenged, in this particular case challenged with a disability. I don't like being part of something that is just a big promotional sham when you've had an opportunity -- not you personally, Derek, but your government and people who work in your employ. You have a minister for disability issues and these problems aren't being solved today. I'm just saying, good luck to the people who need this help in this province, because I just think it's all words. It's not action.

Mr Fletcher: Is there a question there?

Mrs Marland: Yes. Are you going to help? Will this bill help these people any more than the Jobs Ontario community action fund that exists today is helping them?

Mr Fletcher: I'm not here to speak on behalf of Jobs Ontario, even though it is a good program that is working in many communities throughout the province.

As far as this legislation is concerned, when the legislation is eventually passed and put into practice, it should start helping people in that situation who are finding barriers to employment. We can remove the barriers with this legislation. It is not something that just happened overnight that people were being subjected to what you're talking about, and that's what this legislation is trying to address, removing the barriers to employment.

Ms Akande: I too recognize the importance of this, because it makes as part of the legislation the fact that these things must happen and will happen for all people. The additional benefit is that, though the supportive measures may address those who require them, they will also serve the needs of all the workforce.

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One of the points that the member opposite has been making is that there seems to be some special treatment for people of the designated groups, and let me assure you that the fact that we continually repeat the same words in an attempt to be totally clear and not to leave out any of those words, is to prevent the possibility that employers, perhaps inadvertently, may omit to provide the same services to the designated groups and the same treatment to the designated groups that they do to other employees.

I think that this amendment, if anything, emphasizes the fact that the measures that we are taking are not to give preferential treatment to these people but to give them the same treatment as we do all others and as others have had for a very long time, and it is for that reason that the last sentence also emphasizes that the supportive measures also benefit the workforce as a whole. I don't know whether in fact there's a need for some examples of that type of measure. I don't imagine so, but they have been found to be extremely beneficial to all the employees of a workforce.

Mrs Witmer: I think my colleague Mrs Marland has raised some issues which I've mentioned before and I think have been brought to the attention of this committee regarding this particular bill, if you take a look at this particular section and what it is indicating that employers should do. I think what we've seen happen through the Jobs Ontario program, we've had hopes raised. People really did believe they would have access to a job, and it didn't materialize, and Mrs Marland has pointed out some of the reasons why.

We now have this employment equity bill with the promise being made in this paragraph here, and again I think we're raising expectations throughout the province that suddenly there will be employment opportunities for every individual. Given the economic reality of today, given the fact that the employer community has said to us, "We're only replacing 1% or 2% of our workforce," the reality is you can promise what you will in this legislation to the designated groups, but whether it's the designated groups or anybody who's not designated, the employment opportunities will not be available this year; they won't be available next year; they might not be available to the year 2000.

We, unfortunately, in this legislation, I think, have falsely raised hopes. We heard people here say: "Get on with it. Get it done. Get it done now." So I am a little concerned that we are attempting to make a promise that not one of us in this year is able to follow through on, however well intended it is, and I think that was a valid point that Mrs Marland has made. People will be disappointed.

Mr Malkowski: I move that this discussion close and we proceed with the vote on this amendment.

The Chair: Okay. A closure motion has been moved. All in favour? Opposed? That motion carries.

On the amendment: All in favour? Opposed? That amendment carries.

Mr Murphy: Mr Chair?

The Chair: Mr Murphy, there's only one motion left on this section.

Mr Murphy: Okay, I will yield the floor.

The Chair: PC motion, section 2.

Mrs Witmer: I move that section 2 of the bill be amended by adding the following subsection -- and this was simply an affirmation of the merit principle. It states:

"(2) Nothing in this section diminishes or removes an employer's right to hire or promote the most qualified person for a position."

I believe that's self-explanatory.

The Chair: Very well. Debate on this amendment?

Mr Murphy: Just briefly, I think the idea that it's trying to get at is an important one, but I have some problems with the way it's worded which I think will lead us to vote against it. I think it's for many of the same reasons that we had difficulty with that aspect of the wording in the preamble that the third party moved. That is, the wording in, for example, "hire and promote" does not reflect the wording in the balance of the bill. I don't actually buy into the most qualified argument used by Ms Harrington, for example.

But I do have the concern that it doesn't encapsulate the process an employer and its employees must go through in order to establish that you are truly hiring on merit and not on some other inappropriate grounds. I think it's important while you're saying that merit is important that you recognize that the employer has to go through the process of identifying that all of the grounds are relevant only to the job and that any measures that are reasonable measures that could be used to accommodate, in this case designated groups, have also been put into play. I think it's important to recognize those aspects of what an employment equity bill is trying to do in the context of enshrining the merit principle.

So while I support the concept of enshrining the merit principle in this way, I don't think that achieves it in the correct manner.

The Chair: All in favour? Opposed? Defeated.

We'll vote on the entire section 2, as amended. All in favour? Opposed? This section carries.

Mr Murphy: I move adjournment of this committee until 10 o'clock tomorrow morning.

The Chair: Normally, there's no debate, but perhaps just some flexibility on this.

Mrs Witmer: Is it the anticipation of the Chair that we would continue the debate tomorrow and then committee of the whole when the House resumes, or what is the intention here?

The Chair: I make no assumption of what will follow based on tomorrow's discussion. We should do the best we can with all of the clauses and we'll determine what will happen at the end of the day, whatever hour that is at the end of the day tomorrow.

Mrs Witmer: Are we meeting from 10 to 5?

The Chair: Yes, 10 to 5. It could go on longer if the members wish, or it could last as long as 5 o'clock.

Mr Curling: When do we determine that, Mr Chair?

The Chair: As we get closer to 5, we can determine whether members want to stay beyond 5 o'clock.

Ms Harrington: Obviously, it's only 4:30. My understanding was that the committee would go till 5. We do have this time. We certainly need it; I think we should use it. With regard to tomorrow, it's our understanding through the subcommittee that we should be finished this bill by tomorrow, hopefully at 5 o'clock or possibly 6 o'clock. That's the way I would believe our committee sees this.

Mrs Marland: Did the House approve sitting on Friday originally?

The Chair: No. If people want to do that, that's something the committee could agree to do within that four-week time allocation. That's not something we have agreed to do, but it could be subject to discussion.

Ms Harrington: Is there any particular reason why the opposition wants to finish now?

The Chair: We were trying to accommodate a member who had to do something at this time.

Ms Harrington: Could the member give us an assurance that we could possibly make up this time tomorrow?

The Chair: Assurances are difficult to make, as you know. There are no guarantees on this.

Mrs Witmer: I guess related to that, my understanding was that this committee was meeting till 5. I do have another commitment tomorrow, a TV show. I do need to leave here by 5 o'clock tomorrow. I would find it unfortunate that we would go past. That's why I'm saying I really would like to know, because we've all made plans. I mean, we do have constituency and other commitments. I need to be out of here by 5 tomorrow.

Mr Curling: Mr Chair, if this is going to be a problem, I will stay until 5. I can understand; we made an arrangement. If she doesn't want to change the tune now, that's okay. I will stay till 5.

Mrs Witmer: That would be great.

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The Chair: Mr Murphy, very well?

Mr Murphy: I'll withdraw the motion.

The Chair: Mr Murphy has withdrawn his motion. We'll simply resume clause-by-clause consideration. We'll move to section 4, a Liberal amendment.

Mr Curling: Mr Chair, you have it before you. I would save the committee the --

The Chair: You have to read it, Mr Curling.

Mr Curling: I move that section 4 of the bill be struck out and the following substituted:

"4(1) Aboriginal people, people with disabilities, members of racial minorities and women constitute the designated groups for the purposes of this act.

"4(2) For the purposes of this act,

"(a) a person is an aboriginal person if he or she is a member of the Indian, Inuit or Metis peoples of Canada;

"(b) a person is a member of a racial minority if, because of his or her race or colour, the person is in a visible minority in Ontario. The fact that a person is an aboriginal person does not make him or her a member of a racial minority;

"(c) a person is a person with a disability if the person has a persistent physical, mental, psychiatric, sensory or learning impairment and,

"(i) the person considers himself or herself to be disadvantaged in employment by reason of that impairment, or

"(ii) the person believes that an employer or potential employer is likely to consider him or her to be disadvantaged in employment;

"(d) all women, including aboriginal women, women with disabilities and women who are members of racial minorities, are included as members of the designated group `women.'"

Speaking to it, we would like to have this placed in the legislation and not in the regulation. As I said before, there are a considerable amount of things that are placed there. We want to know that we are serious about employment equity, that the definition cannot be changed by the whim or fiat of cabinet or members who may be lobbied very vigorously by any group that feels we could change those names as we go along. I think that if there is any change to this, it should be fully debated, and the only way it can be fully debated publicly is through legislation. I then ask that all members support this, moving it from the regulation to the legislation.

Mr Winninger: I can certainly understand Mr Curling's good intentions in moving this amendment. However, I would caution Mr Curling by saying that there is an active consultation ongoing with the aboriginal community around definitions of aboriginal people and around a good many other issues. This consultation will, of course, affect the ultimate look, I'm certain, of the draft regulation. I might add that not only does the definition of aboriginal people come into play, but the same reference to "aboriginal person" is mentioned in the other categories as well, in clause (b) and clause (c).

Until that consultation is complete, we can't include anything definitive in the legislation and it's more appropriately relegated to the regulations. To import that kind of terminology into the act is premature and, I think, may be somewhat offensive to the aboriginal people with whom we're consulting.

Mr Curling: It is exactly that --

The Chair: Mr Curling, we'll come around to you.

Mr Malkowski: I recognize Mr Curling's intention in presenting this motion, but right now the disabled community is being actively consulted to present its definition of disabilities. That is being developed now; active consultation is happening. It's too early to consider putting this over to the legislation; it's too early at this point.

Mr Curling: It is exactly the point we've been making all along. The two speakers spoke about how at the moment we are consulting with the aboriginal people and how at the moment we are consulting with the disabled people. They used the words "too premature to do that." It seems to me you're telling me it's premature to bring in employment equity; you're not ready.

If you're not ready, you're saying, "Let's hide it in the regulation." I'm saying to you that there are two things you can do. If you're not ready, postpone this bill until you are ready. If you are ready, put it in the legislation, because it seems to me that you want to say to me that you'd like to put it in legislation but consultation is happening at the moment.

My feeling then is that this is a precise thing we are doing. If we have consultation, if we put this in regulation, it will be changing from time to time, as the weather changes and as the mood changes, and if you have it in legislation we must go back to the people for consultation. Even this moment as you're doing it for regulation -- as you say, that's what you're consulting about -- the same kind of consultation will never happen again once you have it in the regulation. You will change it in the cabinet, change it in your caucus. This is not the way we should really run one of the most important pieces of legislation in this province, that we will now just change it by the whim of those who feel differently one day or the other.

It's very disturbing to what I'm hearing that, as we speak, consultation is going on. The native people have written to me and are complaining that they have not even yet been consulted. Farmers today told us that they were appalled, shocked, to know that the legislation -- or not even legislation, the regulation -- has included them in a little corner to deal with their cases. As we go along, each of the identified groups -- all people should be identified in this who can contribute to employment equity -- is not fully consulted. Yet you're drafting legislation which is not really completed or which you intend to complete.

Therefore, I would urge that either you postpone this or move these sections into regulation, because what I read here was in your regulation. How come you're not ready and you want it in regulation?

Mrs Witmer: I certainly appreciate the intent of Mr Curling's motion. I think that is to create some certainty, to put within the bill the definitions of the designated groups in order that all people in this province, whether employer, employee or otherwise, know exactly what and who will be included within the designated group definition. I think we are finding now, since the regulations are still under debate, are still under discussion, that it's totally impossible to move anything at the present time from the regulations to the bill. The action we're undertaking at the present time, this clause-by-clause debate, does seem to be very premature.

I would agree with Mr Curling. I have received a communication -- a couple of them -- from the native community that are very concerned about the lack of consultation with the government concerning this entire issue. They do feel they have been ignored. I've also received a couple of letters and faxes -- a couple that I've brought with me -- where people are indicating that your office made a grievous error in delaying the letter of invitation to appear before the committee. It now appears that not only did Jake Smola receive his invitation one month late; I've been receiving quite a few letters today and yesterday from individuals whose letters, supposedly dated July 30, didn't arrive in their hands until September 2.

There's something the matter here. We haven't given the people in this province ample opportunity to voice their views on this issue. The government's saying, "We're not ready on the regulations." Yet they're really rushing us on the bill. I guess I wonder why.

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Ms Harrington: Certainly the minister has had intense consultations with very many groups all over the province for at least two years. I do have a question, for clarification, on the question of the definitions in the legislation. I think this is a very important point and I would like to ask the parliamentary assistant, is it the intention of the minister to have the definitions in the legislation?

Mr Fletcher: Mr Chair, through you to Mrs Harrington, once the consultation process is over and once we do get the definitions, we do hope to move into the legislation what we do have.

Mrs Witmer: The definitions?

Ms Harrington: Definitions of the four groups, yes.

Mrs Marland: I would like Mr Fletcher to clarify his answer to Ms Harrington, because I don't think any one of us was quite clear on what Mr Fletcher just said.

Mr Fletcher: According to what we see here, as far as what the Liberals are moving is concerned, once we have finished the consultation process, there is a possibility that they will be put into the legislation.

Mrs Marland: I heard Ms Harrington say that the government has been consulting for two years, and now the parliamentary assistant is saying, "Well, once we've finished the consultation process we may get the definitions into the legislation." I mean, how effective can any legislation be if you don't have the definitions? Any one of us can say, "It certainly applies to me, because it doesn't say it doesn't apply to me." There's no defined way of identifying whether I'm eligible or I'm covered by this bill. How can you pass a bill that doesn't define to whom it applies?

Mr Fletcher: Mr Chair, through you to Mrs Marland, I believe that the designated groups are mentioned in the bill. The definition of the designated groups is being consulted on. As far as your being personally affected by the legislation is concerned, I believe you do represent one of the designated groups; and yes, you would be.

Mrs Marland: When I said "I," I was using it in the royal "we" sense, obviously.

Mr Fletcher: I'm sorry.

Mrs Marland: But I think that the Liberal motion is quite interesting, because they're attempting to do something that obviously you're not ready to do yet.

Interjections.

Mrs Marland: It's no good whispering. You have to give your answers on the record.

Mr Fletcher: I'm holding a conversation with you, Mrs Marland. I'm sorry; it's my fault. Go ahead.

Mrs Marland: No, you may speak.

Mr Fletcher: The definitions are not in the mode right now where they could be part of the legislation or anything else, because of the ongoing consultation with the designated groups, and the definitions that the Liberals have are not inclusive and do not pertain to all people who are in the designated groups. To put them in now, if we were to come up with a definition after the consultation process, we would have to go through the House to amend the legislation to change it to what the stakeholders are saying to us. I think that over the course of the three weeks when we did have the consultation process and there were submissions, there were a lot of people who came to us with a lot of different definitions as to what their designated group should be, and that's why we decided to hold more consultation on the definitions.

Mrs Marland: I have really enjoyed these two days on this bill. It's given me an insight into just how unworkable it is. If the government's been consulting for two years on how to define who is covered by this bill and still doesn't have the definition, then obviously it may be consulting for another two years. The good news will be that by then you may well be gone.

Anyway, speaking to the Liberal motion, in clause 4(2)(c) you're trying to define -- Mr Curling, I'm speaking to your motion -- a person with a disability, and you're saying that "if the person has a persistent physical, mental, psychiatric, sensory or learning impairment," you're going to get people challenging you on the interpretation of "persistent." We went through this with automobile insurance and injuries from automobile accidents. What is the interpretation of "persistent"?

Is it permanent? Is it persistent for a short time and impedes your ability to work in a normal employment environment? It may be that it's persistent for two or three months because you have a severe fracture that requires a cast which also in turn doesn't make you fully ambulatory, so your physical environment of your workplace is affected. Just to say "persistent" I don't think is any help in terms of a definition, I say to the Liberal Party.

Mr Curling: Is that a question to me?

Mrs Marland: I don't know if you could have heard it; you were busy talking to the Chairman.

Anyway, also when you talk about the groups of the racial minority, I notice that you don't talk about "racial origin" there, and "racial origin" is a term that I understand is used in the Charter of Rights and Freedoms. I don't know who drafted your amendment, I say to the Liberals, but I don't think it puts us any further ahead than the non-definition from the government who've drafted the bill. This really is an unbelievable situation.

Mr Curling: If I could answer the question --

The Chair: We should let Mrs Marland continue.

Mrs Marland: I have finished, but I'm explaining. I'd like you to tell us the definition of "persistent." It'll be interesting to hear some medical description that will be able to be interpreted both by the people who believe they have a disability that is significant in terms of employment in the workplace and lawyers and physicians who might also think that they have a disability.

Mr Curling: If you give me a chance, I'll respond.

Mrs Marland: It's a very, very serious section in this bill, and it's amazing to me that we're discussing the bill at all without that definition being defined.

The Chair: I have Mr Curling at the end of the list.

Mrs Marland: That would be great.

Mr Fletcher: I think I'll just use a couple of seconds to go on about what has been said; I'm not going to go any further. As far as the consultation process that has been going on for a number of years is concerned, what we have after the consultation process is the basis of legislation that is going to provide employment equity for designated-group members.

As far as the definitions are concerned, yes, they still have to be worked out. One of the reasons for that is the data for the census in Canada rely on certain definitions. To put them in, if they did change, would start messing up some of their collection system. That is one of the reasons that we don't have a firm definition. I could use "persistent" in another way, but I won't even touch that one.

As far as the language is concerned, again, the Liberal motion is attempting to put into the legislation a firm definition of something that the people who are going to be affected by the legislation do not want. That's what we've heard consistently, that this is not quite what they expect as a definition. We heard that through the consultation process. We heard that with the people who presented here, that they did have some problems with some of the definitions. It is going to take some time. Hopefully, by the end of October we should be there.

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Mr Curling: I'll deal with Mrs Marland later, but let me deal with the parliamentary assistant now. First, I just want to tell Mrs Marland I can listen and talk at the same time. Maybe some people can't, actually.

It's interesting what the parliamentary assistant is saying, and I want to make sure that I heard him properly. What I'm hearing is that the regulation you're trying to define now is in the process of consulting all those interest groups and designated groups in order to write good regulations, and you said as soon as you get that done you would transfer that regulation into legislation. If I've heard you right --

Mr Fletcher: No, what I said was that there's a possibility that it could be; that's what I said.

Mr Curling: -- you're saying there might be a possibility to transfer the regulations into the legislation. The fact is that you're trying to say you don't even know who you're dealing with. You have designated four groups, we've identified four groups, women and the disabled and aboriginal people and visible minorities, and you're saying you're having difficulty defining them in the legislation.

I can't understand how you are going to draft legislation to deal with systemic barriers for these designated groups and you don't know who they are. You're telling me you don't know who they are and what you're trying to do is get a definition from those groups, that if they could define for you somehow who is a woman and then get it right through regulation some time down the road, you may put it in the legislation and you're going to do that with all the other designated groups.

I'm completely taken aback that your government and yourself have reached that elementary stage now. I thought you would be much more advanced before you started drafting legislation and drafting regulations. You seem to have not done your homework, or if you have done your homework, you have not listened one bit about this. It is important; if you need the chance to stop this legislation now, we will cooperate with you fully, my caucus, to give you and your government some more time for consultation.

You have even employed an Employment Equity Commissioner to help you draft the regulation. Even if you used a talented, quite capable person to help you in that, I'm not quite sure about that, but if you didn't, you have wasted this money and wasted all that talent there. You are telling me right now that you haven't finished your consultation in order to draft the regulations, and then you're telling us to come here and do clause-by-clause to amend the legislation which, you say, when it's in the regulation, you're going to transfer to the legislation. It is a sort of spin. We're going around in this kind of spin and don't know where we are going. I know exactly what employment equity is all about. I just wonder if you know yourself.

Mrs Marland mentioned the fact that -- and I'm glad that she's here today -- she has learned so much, she said, in the couple of hours that she's been here, about employment equity. I'm very appreciative that the people who have contributed here have enriched her mind about employment equity and here she can respond. If she wants some of the --

Mrs Marland: About the legislation; be fair.

Mr Curling: -- and it's about the legislation, because it's like you have to catch up first to understand the legislation, to know what it's about before we can start amending and asking for a definition. We are questioned; there are things in here, in my amendment, that need some definition. Fine. One will easily tell you what this all means. So there are two questions here.

One, the question is whether or not you're going to have these definitions, the designated groups, listed in the legislation. I heard from you, "Eventually, yes." Well, that being that, if that's the case, I welcome that in the legislation will appear a definition of the designated groups, because you have it hidden inside the regulation and then you are telling me you are not yet ready to deal with that. That's one part of it.

The other part, whether or not in the definition we can start dealing with the specific word "persistent," whether "a person is a person with a disability if the person has a persistent physical, mental, psychiatric, sensory or learning impairment," what can easily be defined? Of course, we can then start getting into those kinds of definitions.

But I'm appalled to know that you sit there today as the parliamentary assistant and are not quite sure whether we're going to amend the legislation, and you don't know what will be in it, because you want to change it when you do get your regulations right, but you haven't got your regulations because you're still consulting.

All the groups which have come before us keep telling us that they have not been fully consulted. The native people have written to me, some women's groups have written to me about this, the visible minorities felt that they were late in getting any sort of information in order to come before this committee, so I'm saying to you to get the act together so we can start amending and get a proper employment equity legislation in force.

Mr Fletcher: Well, Mr Chairman, I was asked a question by Mr Curling. I will respond as far as the definitions are concerned and what he's been saying about getting our act in gear. I would like the member to know that there are over 30 statutes with regulation-making power that define words that are not in the act or otherwise defined in an act, and these 30 pieces of statute go back to Conservative and Liberal governments: the Assessment Act, the Commercial Concentration Tax Act, the Consumer Protection Act, the Employee Share Ownership Plan Act, the Employer Health Tax Act, the Employment Standards Act, the Fuel Tax Act, and I can go on. There are 30 of them, and these were also implemented by the Liberals.

The reason is that we have to consult with the people who came before us and said, "No, the definitions are not quite right." We are following a practice that has gone on even through your government, Mr Curling, and through the Conservative governments, when you were there, of trying to get a piece of legislation on to the books and then perhaps doing some fine-tuning down the road when we see how the plan is working. Not every piece of legislation can be enacted overnight and expected to work without a hitch. I think you recognize that, and I think you recognize that quite well from your time in government, although you didn't do much when you were there.

I think what we have to look at, and when you talk about the words that are in the Liberal motion, "A person is an aboriginal person if he or she is a member of the Indian, Inuit or Metis peoples of Canada," that doesn't begin to cover the number of people who would consider themselves to be aboriginal people. I think that's one of the reasons we do need more consultation.

If you're getting letters, just think of the letters that the ministry is getting. You say you've consulted with aboriginal groups, you've consulted with farmers -- and when I say "farmers," I suspect it was a person on the other end of the line who belongs to the OFA and not the farmers -- I think you're speaking out of both sides of your mouth when you talk about the consultation process. This consultation has been going on for a length of time, and we will be back, as far as the definitions are concerned. The people who are going to be affected by this are going to have at least some say in what the definitions that are affecting them are going to say.

Ms Akande: I think the question is, "To be or not to be?" Though I'm not Shakespeare or whoever it was who said it, I want to say that the whole idea about the definitions being in the legislation is an idea that's close to the hearts of the communities you mention, and certainly to a community that we share, the visible minority community, and I agree. But you must also agree that to have definitions that would not adequately reflect all of those who consider themselves part of this community would be unfair and would be exclusionary and would in many ways be much more detrimental than not having them in the act at all.

You know, ruling by regulation is something that was not introduced by us; it was something that, as my colleague has mentioned, has been done many times before. It has been done for the good of Ontarians in order to allow the kind of flexibility within systems, especially around an issue like this where we expect the population to evolve, to move from views and attitudes that we don't consider appropriate for 1993 to views and attitudes that we would recognize as being much more equitable, much more fair.

It's for that reason that we are continuing to consult around those definitions. I too would rather they be in the legislation, but I wouldn't rather they be in the legislation if they were not definitions with which we could all agree.

Now, to your other point, the numbers of groups that have not been consulted, let me say that there has been extensive consultation with many of the first nations groups and considerable sums of money spent on accommodating and bringing these groups together so that we could consult with them. It's not enough, because there are many first nations people who also want to have a say in this. Yes, it would be great if we had all of those things decided beforehand, but let me say to you that there will always be another opinion and I am tired of waiting.

I think it is time we moved to legislation. I think it is time we recognized that we will achieve perfection long after this bill is initiated, long down the road, when every employee recognizes that it is his or her goodwill, responsibility and duty as a Canadian to hire according to the ability of people. That will not stop with this legislation, nor with the regulations, but it is time that it began, Mr Curling. Do let us begin.

The Chair: All in favour of Mr Curling's amendment? Opposed? The motion is defeated.

All in favour of section 4? Opposed? Carried.

We will adjourn until 10 o'clock tomorrow morning.

The committee adjourned at 1702.