Assemblée législative de l'Ontario

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

CONTENTS

Monday 16 August 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 Malkowski

Fletcher, Derek (Guelph ND) for Mr Duignan

Perruzza, Anthony (Downsview ND) for Mr Mills

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

Wiseman, Jim (Durham West/-Ouest ND) for Ms Akande

Also taking part / Autres participants et participantes:

Ministry of Citizenship:

Ziemba, Hon Elaine, minister

Alboim, Naomi, deputy minister

Hewson, Katherine, manager, employment equity legislation and regulations unit

Clerk / Greffière: Freedman, Lisa

Clerk pro tem / Greffière par intérim: Bryce, Donna

Staff / Personnel:

Campbell, Elaine, research officer, Legislative Research Service

Kaye, Philip, research officer, Legislative Research Service

The committee met at 1402 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're going to begin with the committee hearings. I would like to welcome all of the committee members and all of the other people who are here probably as deputants in the days to come. We are here to talk about Bill 79, An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women.

I would like to point out several things for the benefit of committee members. Research has done several papers, as part of what we talked about in the subcommittee, that may be useful for many of the members to read. I would urge you to read them earlier rather than later. They are An Overview of Bill 79, the Employment Equity Act, 1993 and Employment Equity: An Overview of Policies and Programs in Ontario, the legal framework for employment equity, these two documents here.

We also agreed in subcommittee that deputants would give us their briefs in advance, and that's what's contained in here. What I want to urge committee members to do is to read them so as to allow the deputants not to read word for word but rather to speak to it very briefly to allow for a dialogue between members and the deputants.

The agenda for today is opening statement by the minister, Alvin Curling, official opposition, and Elizabeth Witmer, third party critic. Then we'll have the technical briefing by ministry staff. At the end of that, we'll have a half an hour per caucus to ask questions of the minister and of the ministry staff on this matter.

I'd like to begin by welcoming the minister, Elaine Ziemba, to this committee, and we can begin with your half-hour on this issue. Welcome, Ms Ziemba.

Hon Elaine Ziemba (Minister of Citizenship and Minister Responsible for Human Rights, Disability Issues, Seniors' Issues and Race Relations): Thank you very much. It's a pleasure to be here today and to address the standing committee on a very important bill.

I do want to clarify one point. My understanding was that I would be here, obviously, to hear my critics and that there would be an opportunity for us to have a bit of an exchange at that point and then, unfortunately, time constraints being such that I would leave my very capable deputy minister to do the technical briefing. I don't know if that will be fine.

The Chair: That will be fine too.

Hon Ms Ziemba: Okay. I know that all the members of the committee and those who will be making presentations here during the upcoming weeks recognize the significance of the bill they are about to consider. I also know that they will participate in the hearings in full knowledge that the work done here will have a profound and lasting impact on the province of Ontario, the whole province of Ontario, and that is why I am very concerned and upset that the committee is not travelling. It is important in the democratic process that all of our citizens across Ontario have the opportunity to participate and be involved. I know that we all cherish the opinions of each of our citizens in Ontario and I hope that we're able to be inclusive in this process.

Bill 79 not only will bring fairness to the workplace and social justice to those who have been denied an equal place in Ontario society for far too long, but will also make a tremendous difference to rebuilding our economy. Because that is the case and because I know committee members recognize that to be the case, I have every confidence that they will work in cooperation with each other, with the presenters and with the legislative and ministry staff who are here to help in any way they can.

The committee hearing process, in other words, will be another vitally important, collaborative step in the development of a bill which owes its very existence to extensive consultation and cooperation. We would never have come as far as we have and we would never have been able to come to this committee with the kind of bill we have, had we not insisted on a far-reaching and wide-ranging consultation process from the beginning. It is my sincerest hope that this type of process will be continued in these hearings.

We have to remember that the individuals and organizations who have played such a crucial role in the development of Bill 79 have not always come to the discussion table from the same position or with the same points of view. Some of them in fact have come from environments which traditionally have been adversarial. Others have taken part in a process which for years has been closed to them. Every participant has been aware that there has been much at stake not only for their own individual constituents, but for all of the people of Ontario. So it is quite remarkable that given participants of different backgrounds, different agendas and different needs, they have been able to work in partnership and to achieve what they have to date.

Because Bill 79 has been built upon an extensive consultation process, I would be remiss indeed if I did not take time today to acknowledge some of the many, many people and the groups who have given such an extraordinary amount of time and energy and effort to this bill.

First of all, I must highlight the work of the Employment Equity Commissioner, Juanita Westmoreland-Traoré. Since she became commissioner more than two years ago, she has demonstrated unwavering commitment. It is this spirit that has enabled her, with the assistance of her equally committed staff, to achieve a significant amount of work. She has travelled across the province on many occasions to bring together many different groups with different points of view. As well, she has held meetings and consulted widely with literally hundreds of designated groups as well as business and labour organizations.

The Deputy Minister, Naomi Alboim, and her predecessor, Stien Lal, and the team at the ministry have provided me with excellent support. We unfortunately don't get to see the behind-the-scenes work that goes into an initiative like this, but I can tell you that it has been significant and we owe every person on the employment equity team our gratitude.

I should mention that there has been considerable interministerial involvement and cooperation in the process of developing Bill 79 and the draft regulation.

The commissioner also has had the benefit of a considerable amount of experience and expertise from her two technical regulations committees. This work contributed to the government's development of the draft regulation.

My own technical advisory group has been an invaluable resource as we have worked together to try to ensure that the bill we have presented to the Legislature is practical, workable and, equally important, effective.

We should remember, of course, that in addition to the individuals who have worked with us on specific committees and working groups, there are large numbers of community, business, labour and designated group organizations who have made presentations, prepared briefs and met with us. Many of these organizations have limited financial and human resources, which has meant that many of their members have worked on employment equity on their own time and at their expense. Yet because they have recognized the importance of this legislation, they have been prepared to give innumerable hours to the process over a long period of time. Their participation should be especially recognized.

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I have to go back in time a little to acknowledge other key participants, because it is very important that we remember that, while our bill is the most progressive in the North America, as I have said before, employment equity is not a new concept in this country.

We should not forget Judge Rosalie Abella, for example, who, almost a decade ago, made an impassioned and pivotal plea for the need to take the issue of systemic discrimination in the workplace seriously and to understand the economic and social consequences of not doing so. The report she produced during her term as commissioner of the Commission of Inquiry on Equality in Employment remains a landmark document in the history of employment equity.

We should acknowledge as well the people, the organizations and the legislators who worked on the federal Employment Equity Act, and we mustn't forget the employers, trade unions and designated group leaders who, because of the requirements of the federal legislation, were among the first in Canada to develop employment equity initiatives. We have learned a great deal from the implementation of the federal legislation and the contractors' program.

We must also acknowledge those Ontario employers in the private, public and broader public sector, trade unions, professional associations and community groups that have been working on voluntary employment equity programs for many years. Many of these groups have worked in close partnership with another agency of the provincial government, the Ontario women's directorate, whose ground-breaking initiatives and programs have given us guidance and have played a major role in preparing the way for Bill 79.

Finally, I'd like to make sure that we thank the employers, bargaining agents and practitioners who helped us test and model the draft regulation before we released it two months ago today.

The Ontario organizations that have worked on employment equity initiatives over the years were true pioneers. They recognized a simple fact that is as true today as it was when these organizations made their first venture into employment equity. That simple fact is that times are changing and that the organizations that will emerge as the most successful organizations of the 21st century will be those that have changed with the times. They will be the organizations that have made the best use of the resources available to them.

The case for employment equity has been made by different people in different circumstances. But you'd be hard pressed to find a stronger case than that made recently by Bob Sutherland, a vice-president with the Royal Bank of Canada.

As a federally regulated company, the Royal Bank has been required to implement an employment equity program. Listen to what Mr Sutherland had to say about that experience:

"...Royal Bank has undoubtedly benefited by gaining access to some very talented members of the workforce, many of whom we might not have discovered....The members of these groups aren't the only winners here. The entire organization wins with the infusion of new ideas, a broader perspective, better decision-making and greater sensitivity to all the cultures and diverse groups that we serve."

Mr Sutherland's remarks encapsulate what we have been saying over and over again. We all win with employment equity. Those who have been required to implement equity know it and those who have voluntarily implemented employment equity know it. But unfortunately we know that voluntary measures do not work in as far-reaching a manner as they should.

For whatever reason, there are still far too many organizations out there who do not grasp employment equity's proven potential. As a consequence, while aboriginal people, people with disabilities, racial minorities and women, the groups designated under Bill 79, have made some progress in achieving equity in the workplace, it has been far too little and far too slow.

Employers, trade unions, professional organizations and community groups have expended a considerable amount of time and energy on voluntary employment equity. We will learn from and build upon their experience. But the fact of the matter is that voluntary employment equity has not achieved the results we would like to have seen, the results we need to see.

This government feels that there is overwhelming evidence to show that members of designated groups, despite their levels of qualification, education and expertise, continue to face employment discrimination. Whether it is intentional or unintentional, it precludes them from participating equally in the workplace and, as a consequence, in society.

As a result, this government made mandatory employment equity a priority in its first speech from the throne.

In preparing the legislation that the committee will be reviewing over the next few weeks, we have kept a number of key goals and objects at the forefront of our deliberations.

Our goal has been to ensure that no person in Ontario is denied a job, a training opportunity or a promotion for reasons that have nothing to do with ability. In other words, we want to bring fairness into the workplace so that all people have an equal chance to participate in the workforce and to work at occupations that reflect their qualifications and abilities. The designated groups have a right to be hired, trained and promoted in a work environment free of systemic or deliberate barriers that discriminate against them.

Our objectives have been to ensure that we prepare our labour force for the future, to maximize the potential of all our human resources and to develop legislation that is workable, realistic and effective.

No one disputes the fact that our labour force profile has been transformed in the past decade. There are more women in the labour force than ever before. Racial minorities form a larger pool of our population than ever before. More and more people with disabilities are living independently in their community. Many of the new entrants to the labour force are new Canadians with high levels of skill and education. The aboriginal population is producing more entrants into the labour force.

As a result, the labour pool is quite different today than it was even 10 years ago, so we cannot rely on traditional employment policies and practices to recruit from this pool. One of our objectives with Bill 79 has been to make absolutely sure that we use the entire pool if we want to secure future prosperity.

If we continue to hire, train and promote from a restricted pool of people, enormous human resource potential will be overlooked. Untold experience, knowledge and expertise will be wasted. The emotional toll that is taken when people are underemployed and their skills underutilized has a devastating effect. Designated groups deserve to have access to jobs and Ontario deserves the opportunity to have access to the contribution these groups have to make. The second objective has been to develop legislation that makes the best use of our most precious resources: our human resources.

Our third key objective has been to attempt to create legislation that is workable but that is also effective in achieving our goal. In other words, it must be flexible enough to take into account employers' special workplace realities and corporate cultures while still achieving the goal of a workplace that is reflective of the community.

It is not my intention to go through the bill on a section-by-section basis -- the deputy minister will be doing that later this afternoon -- but I wanted to highlight the objectives of the legislation, because I feel that they are critically important to an understanding of what the government is trying to achieve.

I spent some time at the beginning of my remarks talking about the consultation process, because today we have reached another milestone in the bill's development. I believe it is essential, through the committee hearings, to continue with the spirit of cooperation that has marked most of our journey so far. The purpose of the committee hearings is really very simple: It is to ensure that we go forward to third reading and proclamation with a bill that is as effective, workable and practical as it can be. I think we should all keep that in mind as we listen to the presentations and as we make motions to amend the bill during clause-by-clause.

Employment equity is both a social justice and an economic issue. Of this there is no doubt. I cannot emphasize enough how very much we have to gain, in both human and economic terms, by recognizing people's worth and their abilities and by enabling them to achieve their potential. I hope that the committee members will recognize the important role they will be playing over the next few weeks in bringing fairness and equality to Ontario's workplaces and that they will be as proud of their work as I know I will be when employment equity becomes law in the province of Ontario. Thank you very much today.

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The Chair: Mr Curling, your statement?

Mr Alvin Curling (Scarborough North): Thank you, Madam Minister, for making that presentation. We all have looked forward to this day when we have the employment equity bill being debated and especially the most important part, the presentations of those who are concerned with this legislation and who come before us.

We fully agree with the minister that many people are denied employment opportunities, and there are other outstanding groups not included in this legislation, as you know, like the francophone groups, which you presume are designated so that they will of course have had their separate legislation in which to deal with employment equity, and they were excluded from this.

As you know, the Liberal Party is a strong advocate of employment equity. We believe that a plan should be implemented, of course, to break down both the systemic and the intentional discrimination that exists in our society. But what we must do is develop some commonsense approach to discrimination practices in the job market and beyond that, or even before we reach the job market because it is important that, many times when people are discriminated against, it's because of how they were treated even before they arrive in the job market.

We must, as a Legislature, be vigilant in identifying systemic and intentional discrimination practices. We must be in a position to assist employers in identifying those issues, and they are complex and not as easy on the surface as we look at it.

What we must do is that we must educate employers that this move is beneficial to their economic growth, and through recruiting the brightest and of course the best to serve within their employment. The Liberal Party's convinced, of course, that this can be done without any excessive bureaucratic procedures and burdensome expense to the employers. We believe in legislation that is fair, as you have mentioned, and enforceable. Too often we just make laws and think that it's all over, and just by having the laws on the book is sufficient, but we must be able to enforce those laws when we see people breaking those laws. So only providing, as you would say, "incentives," does not address that problem. It does not ensure the uniform application of the legislation.

Employment equity is not only about access to the workplace; it's also about systemic barriers to employment, improved training and employment opportunities. This includes, of course, access to day care, one of the major concerns of women. We must ensure, and I believe in this very strongly, that the merit principle is preserved. I've mentioned quite often in the House about the report on access to trades and professions, because within this report it identifies groups of qualified personnel that have been denied opportunities to work in their field due to a lack of what people would call Canadian experience, a real loss to the continuing advancement of Ontario and a severe loss of self-esteem.

Self-esteem can be seen by the broken dreams that are found in hospitals, in jails, in psychiatric institutions and many times in our welfare system, but people could be rather productive if given the opportunities which are being denied because of so-called, as we said, Canadian experience or not being recognized for their academic achievements because they were educated outside of this country.

In regard to the aboriginal people, we are still not convinced that the bill and the regulation will address the perpetuated myths that act as systemic barriers, that block access to employment, and myths as you know that include such things as disparaging perceptions of aboriginals as unable to survive in this corporate or government structure, myths that there are no qualified aboriginals to fill the position, myths that aboriginals are generally not interested in employment opportunities. Those things exist not only in the aboriginal people but in corporations. This has been fed consistently to our community, and we must do something in order to break those myths down.

When it comes to the disabled in this employment equity bill, the disabilities impose additional costs, as you know, on individuals; they impose additional costs on family, of course, as well as our society. People with disabilities are different from other groups. As a result, programs premised upon assisting targeted individuals simply to access jobs may not be appropriate. We must be doing something additional in regard to the disabled.

In short, there are no inherent productivity-related differentials that could not be eliminated in principle. People with disabilities in the workplace are an exception among the designated groups. They are thought to be limited at work and not desirous of regular employment and so on. Disabilities are generally recognized as limiting rather than eliminating work effort. There will always remain a residual amount of productivity-justified differential between those with and those without any work functional limitation.

We believe in a cooperative approach to employment equity rather than a confrontational approach -- you mentioned that, Madam Minister, and I agree with that -- and reject absolutely an adversarial approach. We do, however, feel that mandatory or -- whatever word we want to use -- enforceable legislation is essential to bring about the changes that are necessary, because we have found that just by asking people to do something, it takes such a long time and deprives people of their contribution and sometimes, of course, the benefit it has to society as a whole.

We do not need any additional bureaucracy and I strongly believe in that. It seems to me that we can always come up with a new department to do the job and feel that it's all done because we have a new bureaucracy. Of course, you know that we already have the Ontario Human Rights Commission and it is under severe criticism of its progress and its efficiency. We have the Ombudsman and the Pay Equity Commission. What we need to do is use the existing bureaucracy effectively to achieve our equity goals, and it can be done. Some may disagree on that, but I feel that if we look rather closely at these commissions and bureaucracy, the expertise is there to do so.

When I looked at the bill, I was extremely concerned about the kind of double standard that is there. The role assigned to bargaining agents will make the process even more complicated and costly, especially where more than one bargaining unit is involved.

The legislation failed to clearly explain what is meant by "joint responsibility."

The legislation does not provide time frames or even guidelines for the resolution of disputes between an employer and bargaining agent. As you know, time is of extreme importance to individuals whenever they have a concern and have a job loss because of discrimination. I don't need to pull you back into the situation again of the Human Rights Commission where people are waiting three and four years in order to get something settled and are not even quite sure what bureaucracy they should go through.

In regard to the same bargaining agent, if an employer and bargaining agent cannot agree on an employment equity plan, the matter is referred to the commissioner. There are no guidelines with respect to how long the commissioner may take to resolve such a dispute. The role assigned to the commission and to the tribunal will lead, I feel, to the creation of the same type of backlog as I said is now evident in the Human Rights Commission.

In regard to one specific part which will be raised later on -- and we hope you will address that in amendments to the bill or to the regulation -- the guarantee of union seniority rights effectively ensures a promotion within an organization will be sealed off. Thus, the bill only addresses access to the workplace and not access to higher levels, meaning a promotion within the organization or company. I want you to re-examine that, because it seems to me that the unions had concerns about this when you were drafting this, and in your consultation maybe some agreement was made here to protect that.

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Clearly the protection of union seniority rights conflicts then with the objectives of employment equity as it constitutes a barrier to mobility within the organization or with the company.

Mr Chairman, the minister cannot have her cake and eat it at the same time.

The Chair: Are you sure?

Mr Curling: Sometimes they do try, but it doesn't happen.

So at a glance, this proposed legislation seems admirable, of course, and positive, but we're not here just to say the nice words of employment equity; we're here to make sure that we have one of the most effective employment equity legislations ever. I know that sounds rather good, but the fact is, to do so we have to be rather detailed and make sure there are no slips and no cracks that one can fall between. But, really, upon scrutiny, it's apparent that it really guarantees very little. My concern is that we cannot come this far and not deliver. I know my colleagues on this side -- I won't speak for them all; they'll have the opportunity to ask questions -- would like to see a good employment equity that is fair.

Designated groups need legislation that when applied will produce real change. Therefore, we cannot support the employment equity legislation that is being proposed by you today. I am confident that I will support this employment equity bill at the end of the day because by listening, by amending and by understanding, which I know you have the capacity to do and the government should have the capacity to do, and then changing we'll have a good employment equity bill.

But the piecemeal approach that the government has chosen to take with respect to the equity issues is appalling really -- almost bordering on appalling. Previous studies such as, as I mentioned before, on access to trades and the Cornish report suggest centralization on all equity issues rather than having numerous bureaucracy all over the place.

We must examine this employment equity bill over the next four weeks and listen to the individuals carefully to understand their concerns, because within that we will then have a good bill that will bring about real changes.

The Chair: Thank you, Mr Curling, for your statement. Ms Witmer.

Mrs Elizabeth Witmer (Waterloo North): First of all, I'd like to congratulate the minister on her presentation. I know that she certainly is very sincere in her commitment to bring fairness to the workplace and I know that she has endeavoured to consult as widely as possible with individuals and groups throughout the province. Certainly for that I congratulate her, and I think she certainly has done the groundwork extremely well.

She's indicated that she would like to see a profound and lasting impact on people in this province. I'd also like to see that. I hope, however, that the lasting impact will be positive, but I have to tell you, I am concerned about the legislation and I'm not sure that the legislation as presently written is going to have a very positive impact on people. I think it's flawed at the present time. This bill is going to require some very major changes and I hope that the minister will be as amenable to making those changes as she has been in the consultation that has taken place already.

I've had an opportunity to meet with many groups since the regulations were released in June. I've met with the visible minorities, I've met with the disabled, I've met with women, and I regret that I don't think I've met with aboriginals. However, as the bill presently stands, I can assure you that there are many concerns from the designated groups as well as other people and certainly there is a need for some very major amendments to take place to the legislation.

Yes, we all believe in fairness and equality in the workplace. I think we would all agree we want to do everything possible to maximize the potential of all individuals in this province. What we need to do is eliminate discrimination in employment practices. As a result, then, we will have organizations that operate in a very positive manner.

However, I believe very strongly -- and that's an issue that this bill does not address. This is the greatest concern that our party has: We believe that the employer needs to preserve the right to hire the best-qualified person for the job. That is the merit principle and it is not contained within this bill. That's an issue I'm going to speak to just a little later, but that is our greatest concern. There is no preservation of the best-qualified-person-for-the-job or the merit principle.

I guess I'm also concerned because in Bill 79 I see the government giving total responsibility to the employer community for employment equity. I believe that there are key barriers to employment equity which need to be addressed by the government, and key to everything else in this province are education and training. If we don't provide individuals with training and educational opportunities, obviously they're not going to be able to access some of these employment opportunities, particularly at a time when our economy is changing and individuals are going to need more education and training than ever before, if they're going to access the new high-technology positions. I just don't see the government taking many, or any, positive steps to ensure that members from the four designated groups -- women, those with disabilities, visible minorities or aboriginal Canadians -- are provided with those opportunities.

Another real barrier to employment opportunities which I've talked about before is language training. With the increasing number of immigrants coming to our shores and seeking residence in this province, it is absolutely essential that we provide them with English opportunities.

Unless some of those areas and some of those barriers are addressed by the government, you can give all of the responsibility you want to employers, but you're not going to achieve equal opportunity for all individuals in the marketplace. I hope the government will certainly take a look at working with people in this province to ensure there is equal opportunity for individuals.

I believe very strongly, as does our party, that every individual in this province must have the same opportunity for advancement. However, we have to remember that no school in this province, no training centre, no government, is ever going to be able to ensure equality of outcome; we can only ensure equality of opportunity. When I take a look at this bill, I really do believe the government is trying to ensure equality of outcome, and that is totally impossible. We just can't do that. All we can do in this province and all this legislation can do is provide for equal employment opportunities for everyone.

As I've indicated, I believe the bill requires some very major changes. I believe there are very serious flaws. What we're trying to do here is legislate the makeup of the workforce, and we're going to enforce it by an administrative monitoring procedure. You have distinctions that employers have been prohibited from making under the Ontario Human Rights Code, such as race, which are now going to become distinctions which employers are required to make for the purpose of achieving employment equity goals. This legislation, unfortunately, is going to create hiring quotas and other preferential policies. As I've said before, what it's attempting to do is mandate equality of outcome, whereas the focus of the government should be to create an environment in which there is equality of opportunity.

The government needs to remember that there is a difference between equality, being equal, and equity, being fair. It's this very difference which raises the questions about reverse discrimination, about tokenism, about quotas and the demise of the merit principle. We should be focusing on the equity goal, not the equality goal. The best person should get the job, the promotion, the scholarship or whatever. A quota-driven system may produce numbers, but it's never, ever going to produce fairness in the eyes of the people in this province. People don't want special favours; they want full and fair equity in the hiring process, and that's where we should be attempting to make sure that this bill provides that type of opportunity.

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I mentioned before that I've talked to young people. You know, most of them have very serious reservations about Bill 79. Most of them feel very confident that they can be successful, they can gain entrance to college, university, a job, based on their own merit, based on their own ability.

I mentioned in my presentation in the House about the young woman that I met when I was speaking one day. She said to me: "You know, Mrs Witmer, I'm so disgusted, I'm so hurt, because I know I was accepted at a university in this province" -- and I'm not going to name the university -- "because I was able to check off four boxes. I was able to check off I was a female, I was able to check off that I'm disabled and I was able to check off that I'm a visible minority because I'm black." She said, "I wanted to get into that university because of my ability, not because of my disability and not because I happen to be able to check off three out of four boxes." I think that's what we need to remember: People don't want special favours; they want full and fair equity at all times.

With Bill 79 we're going to see legally enforced numerical targets for the hiring of aboriginals, the disabled, racial minorities and women. Rather than treating all individuals fairly and impartially, it's going to require that the four designated groups be explicitly favoured in occupations where they are underrepresented; in other words, where their participation does not match their percentage of the population.

Unfortunately, this bill is not even impartial in its enforcement of this principle, because it doesn't require that men be favoured in professions such as nursing or library science and primary school teaching, where they are underrepresented. The discrimination the bill implies is tacitly recognized in the legislation itself, which includes a clause that exempts it from the provisions of the Ontario Human Rights Code, and of course that's the principal legal mechanism for fighting discrimination in Ontario.

I think that the government has not totally taken into consideration how complicated this issue really is. It encompasses so many, many, many dimensions. It's not as simple as we imagine it. We have to consider education. We have to consider training. We have to consider culture. We have to consider demographics, society, attitudes, qualifications and personal ambition. I'm not sure that's all being considered.

We also have to remember, as I said before, that the present training and educational structure within our province has not been designed to adequately prepare the designated groups for many jobs in our society. The government, as I said before, has to do something to ensure that we do have a qualified workforce available. At the present time, there is absolutely no way that a workforce can reflect the face of Ontario, because we don't have sufficient numbers of qualified workers available within the designated groups.

We simply have to take a look at what happened in Kitchener with the firefighters. Unfortunately, we had qualified males but we didn't have qualified members from the designated groups. So now they're going to do things a little differently: They're going to prepare people beforehand in order that they can all compete on the same basis for the final job. Those are the types of changes that we need to be making: preparing people, getting them ready, so that they can compete on a fair and equal basis.

You can't expect employers to hire people who don't have the necessary qualifications. If you're going to do that, you're discriminating against those who are outside of the four designated groups, because you're still going to expect them to have the required qualifications.

I want to go to the preamble now. There is no part of the bill, other than the fact that there's no mention of the merit principle, that concerns me as much as the preamble. It's without precedent in any Ontario statute -- the form and the content. It concludes that underrepresentation of the four disadvantaged groups in the workforce occurs as a result of "systemic and intentional discrimination" by employers. Then it states in effect that the people of Ontario recognize that employers have been guilty of widespread illegal discrimination.

The assumptions of this bill, of this preamble -- it's misleading. It fails to take into consideration or acknowledge in any way that underrepresentation of the designated groups in the workplace results from many historical, many social and demographic reasons; for example, changes in immigration patterns which have changed the racial makeup of the community, but because these individuals have only recently arrived on our shores, obviously they're not reflected in the pre-existing workforce. That's not taken into consideration.

Another thing is self-selection by members of designated groups for certain types of work. Again, we don't consider the educational and the training opportunities not being available.

We fail to consider that lack of child care has played an important part in women in particular accessing. I can personally speak to that myself as a female. I know the problems that women face as far as getting good child care is concerned. That's been an obstacle and that's been a barrier, and that's perhaps why many women are underrepresented.

Also, transportation for the disabled -- that's another reason there's been underrepresentation of the disabled -- and the operation of seniority principles and the operation of collective agreements.

Those are all reasons why there's been underrepresentation of the designated groups in the workplace. It's not just because of "systemic and intentional discrimination" by employers. If that's the premise we're going to put out there, that's going to be met with resistance rather than goodwill from the employers, so I'm very concerned about that particular section.

I guess the problem with mandatory employment equity, with mandatory quotas, is that it focuses on statistics and not the people who need a fair chance in the workforce. As I said before, it seems to foist all responsibility for achieving equality upon employers, it ignores the reasons why the barriers exist, it fails to account for the complexities of workforce demographics and it doesn't allow the hiring of the individual who is the best person for the job.

Unfortunately, quotas and mandatory employment equity are going to eliminate free and fair competition in this province.

I want to conclude by focusing on a few problems with the bill. First of all, there's going to be some problem in the area of definition and identifying members of the designated groups. That's not contained within the bill but that's been deferred to the regulations. Self-identification is going to pose a very practical problem for employers in that we know that employees are going to decline, some of them, to describe themselves as being members of a racial minority or disabled.

For example, an employer may hire a person with a disability that is not visible and even discuss with the employee requirements of accommodation, but the employee may not consider him or herself to be disadvantaged in employment or may object as a matter of dignity or privacy to being identified as disabled. Similarly, a Canadian-born person or citizen may self-identify as Canadian only and object to being identified by a racial group.

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Reluctance to self-identify is going to affect the employer's success in achieving his or her numerical targets, and unfortunately, presently there is no mechanism in Bill 79 for the employer to dispute a failure to self-identify even if the person's membership in the disadvantaged group is obvious. I think that's a flaw of the legislation.

Another issue of concern is in the area of confidentiality. This bill provides the right on the part of bargaining agents to have access to information held by the employer. This access to information could lead to abuses, and certainly there needs to be serious consideration given to providing confidentiality to the individual and also to the business plan which the business community has in its possession. There needs to be much more attention given to providing confidentiality within the legislation.

Quotas: I talked about the quotas before. The government says Bill 79 is not based on quotas, but we know it's a number-driven system. If you take a look at the dictionary, it defines "quota" as "the share or proportion assigned to each in a division," and the objective of Bill 79 is to ensure that "Every employer's workforce, in all occupational categories and at all levels of employment" reflects the designated groups' representation in the population in the community. If that's the objective of Bill 79, it certainly fits the dictionary definition of "quota." I can tell you, the issue of quotas is a very serious concern for people in this province.

Seniority systems: I've indicated that that's going to present a problem, and we certainly need to take a look at addressing that.

Another area of concern is the opportunities for change at the present time. The opportunities for any change taking place at the present time in the workforce are limited because of the economic situation; there's not a lot of new job creation taking place. I think we're going to have to recognize that. It's going to be very difficult for employers to meet the numerical goals within a timetable because of the recession we're experiencing. Certainly, the government needs to give consideration to that.

We need to take a look at the cost. There is a tremendous compliance cost associated with this particular bill. I know we've said before that this legislation is an employer's nightmare, but it's a lawyer's and a consultant's dream because a proper review is going to require either that you retrain one of your employees or that you hire a lawyer or a consultant. Certainly, there's going to be a commitment of time and money that's involved. I guess we have to ask ourselves the question, will the administrative cost of employment equity affect the ability of Ontario businesses to remain competitive, particularly at this time?

Another cost we have to look at is the cost of the Employment Equity Commission. Again, there's a budget. The estimates for 1993-94 indicate it's going to cost $6 million; when the bill was first introduced in June 1992, we heard it was going to cost $4 million. So you can see the cost has already increased $2 million, this at a time when we've just tried to slash costs and we've all gone through the social contract process. We need to remember there is a tremendous cost involved in the application of this bill, not only for the employer community but also for the government and then, in turn, the taxpayers of this province.

I want to make a point that, unfortunately, during the consultation process the government didn't respond to the participants who asked that the high cost of compliance be recognized and requested that the government provide them with some financial grants, incentives and low-cost or free technical resources to ease the financial burden of compliance. I would like the minister to respond later about why this request for assistance has been totally ignored by the government, because I think there was an opportunity here for the government to provide some partnership and some support to the employer community in order to reduce the cost and reduce the duplication.

I think we are very concerned as well about the power of the commission, because the commission may, without any hearing whatsoever, order an employer to take any steps specified by the commission that it considers just in achieving compliance with the legislation, and the failure to comply will result in a $50,000 penalty.

If we take a look at the employment equity legislation, there's certainly much that needs to be changed. I think we're all committed to the fact that we want to see fairness and equity in the workplace but, as I've indicated before, we must work together. I hope the minister will be amenable to making some major amendments to the legislation, because certainly that's going to be required.

We want to make sure that at the end of the day people in this province feel united, that they do not feel divided, that they do not feel separate, that they do not feel someone has been promoted or been put into a position because they're a member of the designated group. I would ask the minister to give very, very serious consideration to putting into the bill the right that the employer will have to always, always hire the best-qualified person for the job. The merit principle must be preserved if we're really going to have fairness and equity in this province.

The Chair: Thank you, Mrs Witmer, for your statement. Given that the minister cannot stay until 6 o'clock, what I would like to propose is that we give an opportunity to the opposition members, and government members as well, to ask questions of the minister for as long as the minister can stay. I'd like to go to the official opposition critic to begin the questions.

Mr Curling: Madam Minister, you know I have been concerned about Access!, Task Force on Access to Professions and Trades in Ontario. I believe it was an excellent report, and I think your government, too, applauded that report. It has an impact on employment equity. Will you be implementing the recommendations of Access? If you are, when will you be doing so? If you are not, why would you not implement those recommendations of the Access to professions and trades report?

Hon Ms Ziemba: Actually, I'm very pleased you've asked that question because it raises issues that our colleague Mrs Witmer raised, that people coming from other places perhaps do not have the training or do not have the expertise and the education. We know full well that they do, and we value their input into society. We know that people come from many different places with a lot of good expertise that we should be using.

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We announced, as you remember, I guess it was last December, a pilot project to look into working with professional organizations, educational bodies and community groups to see how we can bring about those changes. We have just started and embarked on those particular projects, so it's still too early for us to assess the results. Some of the projects have not quite started and will be starting up in a short time.

We're expanding that to include some other organizations and we're getting some good feedback from professional bodies that want to share with us and with the educational organizations that exist and that can help us, and also with the community groups, with their knowledge and information of what their communities bring to this province. We'll be assessing that, we'll be working very closely with those various bodies and we hope that assessment will give us some feedback into how we can bring about those changes.

Mr Curling: I'm hearing from you then that you agree with that report. You will continue to work with the professional groups to implement those recommendations that are placed in that report.

Hon Ms Ziemba: I don't think anybody could deny that there are people who come to this province with very well founded experience in education who have not had the opportunity to explore their careers in that particular expertise they have gained from other places. As well, just looking at my deputy minister, who worked very hard with the prior learning assessment areas, that brings into account some very unique ways that we can, in the Ministry of Education and Training, develop and continue working with people who come from other places with their skills, and we will continue to do so.

Mr Curling: Let me just pursue this a little bit, because what you just said is what the report is all about, so we don't want to go back to re-examine it. I just want to know, and first maybe I should ask you, do you accept that report as a good report, and that the recommendation therein is something that should be implemented?

Hon Ms Ziemba: As I said, we are looking at the preliminary pilot project so that we can experiment and work on that. I think that will give us further development and probably that can work with those communities so we can make it happen. I think that at this particular time, until we have worked on those pilot projects, we need to develop a little bit further and work with those professional bodies as well. As I've said, there's been some very good interest in the professional bodies, the educational colleges and universities and as well the community organizations to work together in partnership to develop some very good pilot projects that we are looking forward to seeing develop and then assessing their outcomes.

Mr Curling: I sought legal counsel a while ago, and legal counsel tells me that you said no.

Do you have a supplementary to that?

Mr Tim Murphy (St George-St David): Yes, if I can. Just to follow up, my understanding is that in the recent social contract negotiations, an agreement was struck with the Ontario Medical Association, I believe, regarding access to the profession of being a doctor and in terms of excluding those outside the province. In that regard, I'm wondering whether you were consulted about the impact of that in terms of an employment equity goal of making sure that, for example, doctors represented the designated groups in our society and what impact that would have on many of the minority and other groups in our community and in Metro Toronto, people who have talked to me about the impact of not being able to get their credentials accepted here. I'm wondering if you were consulted about that agreement and if so, what you said and what you think about the impact of that agreement, for example, in the context of the application of this very bill.

Hon Ms Ziemba: First of all, there are two parts to that question, although it appears that there's only one part. First of all, in our work prior to the social contract and when we were developing our work to start our pilot projects, we consulted with the Ministry of Health to see how our pilot projects would impact on its particular situation and its particular needs at this particular time. We also have been working with the federal government in trying to come up with an immigration agreement.

The reason I bring that in at this particular part of my response to you is that we recognize very clearly that often people come to this province and to this country with very full intentions of going on with their careers. They're given a point system in the Immigration Act so that the higher learning you have and the higher training you have, the higher points you bring with you and so the quicker you come to this country.

We've been very clear that we want to work with the federal government to see that there would be a fairer system, that when our province has needs, we are consulted about those needs, that when our province recognizes that perhaps the line is full right now entering into a career, we are consulted at the same time. Those are very special recognitions. I think it's very unfair how the system has worked in the past, because people do anticipate coming to this country to be able to explore their careers, and unfortunately there are barriers in place.

We, as I said earlier, with $2 million that we've put into a kitty, are going to look at pilot projects bringing together a partnership of not only the professional organizations and the community groups, but the places of higher learning, the colleges and universities. As well, we have an apprenticeship working program that will incorporate some of those people who have come to this place.

We have consulted, but it's been an ongoing dialogue of many months prior to the social contract.

Mr Murphy: That was a long answer that I'm not sure answered the very specific question I put, which related to the social contract agreement with the OMA regarding the restriction on access of people outside the province and its impact on what are possibly designated groups. I think there's a real problem of restricting doctors, and there's possible impact on other areas. I've talked with people from the Filipino community who have fully qualified in the Philippines, have come here and are unable to practise. I'm wondering whether you were consulted as to the impact on employment equity of that agreement with the OMA.

Hon Ms Ziemba: I guess I tried to answer in a very comprehensive way, which I tend to try to do, to say to you that we discussed the concerns of the Ministry of Health prior to the social contract, when we were developing our program on access to professions and trades. We dialogued with them very clearly way before. We've been working with them, I guess, almost a year now on their needs and looking at our human resource needs and the development of those human resource needs for this province, as we did with other ministries in other areas as well.

Mr Curling: I'm going to try to get a couple of more questions in.

The Chair: One more question.

Mr Curling: All right, one. I have five or six, but I'll take one.

Are you considering, Madam Minister, changes to the contentious section that guarantees the unions seniority rights of call-back and layoff but which conflicts really with what you want to achieve in employment equity?

Hon Ms Ziemba: We have had long, lengthy discussions about that particular clause. We had that prior to developing the legislation. The equity-seeking groups and the designated groups members we have consulted with on an ongoing basis recognize that to make sure there is fairness in the workplace continually, seniority and layoff and recall are very important for them as well. They have often stated that they believed in that principle as well.

I'm looking forward to hearing the comments that will come from the witnesses as they come before the committee on this particular issue. I'm sure you'll be asking many different groups their concerns and you'll probably ask them that particular question. I will look forward to hearing those responses.

Mr Curling: So you don't intend to change it?

Hon Ms Ziemba: I didn't say that, my honourable colleague. I did say that I think this process means that we listen, and we listen carefully. The process of building this bill and the regulations was a process of listening very carefully to all the comments. To tell you at this particular time that I am ready to make an amendment or not ready to make an amendment would preclude all those wonderful people who are bringing forth their deputations. I want to listen very carefully to those comments.

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The Chair: Mr Murphy, one final question.

Mr Murphy: In the Opening Doors report there were two groups in particular that were identified as making representations to be included as designated groups and were not included as designated groups; that is, the francophone community and the gay and lesbian community. My question is, why are those excluded?

Hon Ms Ziemba: That's a very fair question. When we went out and when the commissioner went out to consult, those two groups were asked to be included in the consultation. We thought that was very important. Now, I want to separate the two groups, because I think they're very different.

The francophone community: As we look on the designation in the OPS, we have continued to share that this will be a designated group member in the Ontario public sector. When we looked outside the Ontario public sector and looked into the other communities across Ontario, we found that there was not enough information for us to base, at this particular time, that that would be a designated group. However, we are not closed to opening that door and have stated very clearly that we will continue to work with the minister who is responsible for francophone affairs.

We set up an interministerial committee to look at this particular issue and to see if we can encourage people to submit their hard-core stats so that we can proceed with making a true judgement. I would say to you that we still need some more information and we still need to look at this, if we were to include them, but they will still be included in the OPS.

The other issue of gay men and lesbian women to be included as a designated group member: We discussed this with many different groups -- not only the commissioner, but myself personally -- and have a deep commitment, as you know, with this government. I commend you for your private member's bill, because it's extremely important that we take into account that no person is discriminated against because of their sexual orientation. I commend you for that and I know that the Attorney General is looking forward to making sure that we have taken those particular issues into account.

As we spoke to groups of people across the province, whether they were in organized groups or not, people wanted, especially from the gay and lesbian community, to make sure that there was no sexual harassment at the workplace. But most of the comments we received back were that they were not ready to self-identify. I think that is a concern we still have to look at and have to work with. It is, I think, not quite clear, even when we look at our statistics, that we can find the information to say that people have been denied an opportunity to actually apply for a position.

I think we can accommodate those particular concerns in a different fashion, and that would be by having sexual harassment provisions in the workplace, in an employment equity plan, yes, but not necessarily having them as a designated group maybe.

The Chair: Thank you, Madam Minister. Mrs Witmer.

Mrs Witmer: I want to deal with the preamble first. As I indicated to you, I feel it's very negative, and certainly I feel that it accuses employers in this province of having behaved in a very discriminatory manner. Have you given any consideration to making it more positive in order that employers would be much more willing to cooperate with the government? Why would you start out and accuse employers for all the wrongs? It's so negative. It's so contrary to anything that I believe in. I think you should be making a positive statement in a preamble.

Hon Ms Ziemba: We certainly will look forward to hearing the comments. I spoke to a group of people this morning over a breakfast meeting on that very same issue. I have a feeling that you've spoken to them as well. Certainly, if there's a way that we could take into account that would make the preamble -- have people feel more comfortable. The intention was never that we are accusatory, because in fact what we have tried to do is work with the employers, especially the ones who have done such a fantastic job already in employment equity. We're learning from their experiences, benefiting from the work they've already done.

Mrs Witmer: I hope that will become a positive statement and a statement that will allow people the opportunity to feel much more willing to cooperate with the government in order that the interests of all the people in the province can be met.

I'd like to go back to the merit principle. As I indicated to you, I certainly feel very strongly that the merit principle should be enshrined in the legislation, as does the Ontario PC Party. Are you willing to give some consideration to the fact that the best-qualified person will always be hired by the employer, that the employer has the right to hire the best-qualified person for the job?

Hon Ms Ziemba: The employer will always have that opportunity, but I guess I have to go back to your remarks, because I think in the designated group members we probably will find the best-qualified people will --

Mrs Witmer: But what if not?

Hon Ms Ziemba: Just hold on, now. I think that we do have within those designated-group people already very well qualified people who are able to do the job, who are trained, who are educated and who are able to take on the duties in the workplace, and this is what employment equity is about. It's about ensuring that they do have those opportunities.

In your comments earlier you talked about education and training and you talked about language training. I have to say to you I agree with you that education and training and language training are extremely important. I will sound very political at this particular point, but this is one of the reasons we brought in the Jobs Ontario initiative. It is not just about capital funding, but it's also about training people who need to get retrained to get back into the workplace, and to give employers the opportunity for retraining people as well. So that's one initiative that I think we've moved on very quickly.

Also with education and training, the Minister of Education has just released, I believe it was the beginning of July, a document about making sure that there is not discrimination in the educational system, that every student is given an equal opportunity and that it is made sure in the curriculum that people feel their worth and are being able to continue on in the educational system. I think that particular document will do a lot of good in the future training of our young people and will give people the opportunity to move forward and not to drop out.

But I would still go back to you to say that when we look at language training, and you talked about people coming from other countries who perhaps have not had the opportunity of learning English or French and their mother tongue is not those particular languages, we share the responsibility with the federal government and we find ourselves in a bind because we do not have the jurisdiction in Ontario, as Quebec does, to have the full jurisdiction over immigration.

So we try our best, and I think we do a wonderful job with the programs we have at Ontario Welcome House, with the funding we give to community organizations, such as the Ontario Council of Agencies Serving Immigrants and other groups -- skills for training -- that provide people with English-as-a-second-language training. In fact the previous government had started a program with training in the workplace, which is a wonderful opportunity for people to take the chance while they're working, right in their own workplace, to learn English and to learn it when it comes to their own workplace, and that has worked very well.

So we're trying to improve on that, but we also need the cooperation of the federal government in its training with the language.

But to go back to you, I would sum up to say that I still believe wholeheartedly, as this government does, that designated-group members, whether they're women, people with disabilities, visible minorities or aboriginal people, do have qualifications, they're well trained, they're able to carry on in the job market and they want to be able to do so and they could, I think, very easily compete on the merit system.

Mrs Witmer: I hear you saying then that there will not be the right of the employer to hire the best-qualified candidate; you're not willing to preserve the merit principle within Bill 79.

Hon Ms Ziemba: Can I just say that there's nothing in the act that says an employer must hire an unqualified person. In fact the act says the best-qualified person. So I think that employers who are practising employment equity already know that, that they do hire the best-qualified person for the job.

Mrs Witmer: However, the legislation would make it so that an employer needs to meet the numerical goals and timetables and the quotas, and obviously at times the perception is going to be that certain people are receiving special treatment and that people who have earned a position have done so not because of merit but because they were hired to meet a quota. I guess unless you make it clear within the act that the merit principle is preserved, that unfortunately will be the perception.

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Hon Ms Ziemba: First of all, there are no quotas in this particular bill and I have to state this again. A quota system would be the government saying to each employer in this province, "You must hire X number of people by a certain date." We are not saying that. We are asking the employers to sit down, to look at their respective workplaces, look at their respective communities that they exist in and then, with their own timetables, knowing best for themselves when they can hire people, they will judge when they are going to open the doors and when they are going to have people in their workplace. So it's really up to the employer, which is not a quota system; it's the employers setting their own goals and timetables.

Again, I say to you that it's extremely important in this process, as we listen to people who come forward with their comments and their interpretation of the act, that we all listen very carefully. If there is a perception out there that employers will be asked to hire unqualified people, then we will have to look to make sure that the act instils the confidence and that it says the best-qualified persons fill it. But we still have a long way to go and we have to listen very carefully.

Mrs Witmer: Let's talk about one other thing and then I'm going to give Mr Tilson an opportunity to ask questions. Today we discussed the timing of this committee. As you probably know, we have three weeks of hearings that have been set aside now and I understand that the fourth week probably will be devoted to hearings as well, because we've had more individuals come forward recently than we had anticipated.

I'd like to discuss with you the question of the clause-by-clause. It had been suggested to us that in the fourth week we would do clause-by-clause of this bill. I know you've spent a tremendous amount of time already in consultation -- several years -- and I know you want a bill that certainly is going to be fair and effective. I guess my feeling is that after only three weeks of hearings, if that's going to be the case, it would be totally impossible to do clause-by-clause the fourth week. For us to really, truly take into serious consideration all of the presentations that are made and for our staffs to put together the appropriate amendments is almost impossible. Are you willing to postpone the clause-by-clause deliberations until the House resumes in September?

Hon Ms Ziemba: Thank you very much for asking my advice, but my understanding is that, in the standing committee process in this democratic process that we have, it's the committee that makes these decisions. I would hate to put my feelings on the table and preclude the committee. It seems to me that that's not the way things are done, but I thank you for giving me the opportunity to be asked and will take your advice under consideration.

Mrs Witmer: I'd like to pursue that, because I was a little surprised at the response I got today. I personally feel that we've invited people in to make representation and, as I say, we now have three weeks of groups and individuals scheduled and it appears that maybe we'll go into the fourth week and maybe we won't. However, you've devoted so much time and yet I heard your representatives say to us today, "We want it all done in four weeks." I guess I'm surprised that for a government that spent so much time consulting, we're now being told today, "You don't have an extra couple of weeks to take into consideration all of the presentations." We're only going to have one weekend, which is Labour Day, and then we're going to go into clause-by-clause.

I'm a little concerned that this is where the government's been heading: "Three weeks of committee and then we'll just wrap it up and tuck it away, because we want to make sure that the people in this province don't really know about this issue, because they'll be busy with first week back to school." I have to tell you, that's the impression I got today and I'm disappointed. If we're going to do justice to employment equity, if this bill is truly going to be fair, we need time, all three parties, to give serious consideration to the three weeks of deliberations, and you can't do that in one Labour Day weekend. So I hope you will give advice to your party that we would have more of an opportunity before we would come back and do the clause-by-clause.

Hon Ms Ziemba: I'd like to thank you for sharing your concerns with me, first of all, because my understanding was that at the very beginning, when the subcommittee first sat down to discuss what the committee was going to do, the government members wanted to have four weeks of hearings and the subcommittee -- which, of course, means that the representatives in the opposition parties have the majority -- decided on three weeks. It has now gone back to four weeks, which I'm pleased about because I think we needed four weeks.

I was also very disappointed that the subcommittee decided they would not travel, because I think this is a very large province and people from across Ontario will be sharing in this initiative, and not everybody has three days to set aside to come to Toronto. When I say three days, people from Thunder Bay need a day to travel here and a day to travel back and then a day at committee. Not everybody can take three days out of their lives to come to a committee hearing. So I was disappointed when the subcommittee made that decision, and again, as I said, the opposition parties have the majority on the subcommittee.

I'm equally pleased to hear that you want to make sure that people have full opportunity to -- and I know that you were not present at the subcommittee meetings. I'm not saying that it was you personally.

Mrs Witmer: As was Mr Curling.

Hon Ms Ziemba: That's right. I spoke to Mr Curling about it and I know we share the same concerns about that particular issue, and about not advertising as well.

I hear what you're saying, but there is a process in place, and the way the parliamentary system works in this province and in this country is that the committee makes those decisions. I will caucus with my colleagues, but it certainly will be a decision for all of the committee members to make.

The Chair: Madam Minister, I just wanted, for clarity, to say that the subcommittee was dealing with this today. We did not conclude it. The concerns were raised. Tomorrow we will meet again as a subcommittee to try to address some of the concerns that have been raised.

I'd like to have Mr Tilson ask one final question and then we'll move on.

Mr David Tilson (Dufferin-Peel): Madam Minister, on the issue of the reverse-onus principle which has surfaced in the media and in the opposition questions in the House -- in other words, of being guilty until proven innocent, of proving that you don't behave like a racist or a sexist -- the fear that's been expressed on a number of issues has been increasing. It surfaced in the House in Mr Lewis's report on the Yonge Street riots. It surfaced in Mary Cornish's report, prepared at your request, on achieving equality. It surfaced in a report on the human rights reform, in the report on the sexual abuse of patients which was prepared by the College of Physicians and Surgeons, and there have been a number of other things in which your government, on a whole number of policies -- and now, as Mrs Witmer referred to in her opening remarks in response to your presentation, in the preamble of Bill 79. In other words, the reverse onus is there. Some of the statements that are made in the preamble of Bill 79 are quite clearly an extension of the reverse-onus principle that has come out on these very many reports, which is so totally against all of the things that all of us, and I suspect including you, stand for.

I'd like you to comment on the fear that has been raised by people in opposition to your bill on the question of the reverse-onus principle.

Hon Ms Ziemba: First of all, when we hear people express those concerns, I think any change is a feeling of threat and people do worry about that change, and I would not be surprised to hear people be concerned about that.

Mr Tilson: You said in your preamble -- it's not a fear, it's a fact, because it's right there, as Mrs Witmer has expressed.

The Chair: Mr Tilson, allow the minister to answer your question, please.

Hon Ms Ziemba: And as I said to your honourable colleague, this process of the bill has been one of consultation, has been one of dialogue, has been ongoing dialogue and comments, and we will continue to do that. If there is enough evidence to show that there needs to be some clarity put into the preamble, that certainly will be done so that we don't have people feeling that a reverse onus or reverse discrimination, however you want to call it, is there. We certainly will work with all of you to make sure we have the best wording that is possible.

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Mr Tilson: I think we need to act --

The Chair: We need to move on, Mr Tilson. I thought you had a supplementary, but we need to go on. Ms Carter?

Ms Jenny Carter (Peterborough): Minister, I know you've already dialogued with Mrs Witmer on this point of whether the best person is getting the job, but it seems to me that this is such an important point that I want to go back to it. I felt that Mrs Witmer's presentation was really on a totally unsound basis, that she was assuming the bill was somehow working against the possibility of always hiring the best person for the job, which, as far as I can see, is quite unjustified.

I think a lot of assumptions are buried under that, that there's still a deep-seated feeling in a lot of people that people in these categories are not going to be the best person. If in the past and up till now the best person for the job always had been hired, even though there may be some unfairness in who gets qualifications and so on, then we would not now be needing to have this legislation; we would just be looking at the education and training side of it and that would be sufficient, because then the people who are visible minorities and so on would have the same qualifications.

But the real fact is that there are people with wonderful qualifications who have not got the jobs they're qualified for because they come into these categories. We feel absolutely certain that if the best person always gets the job, then the representation of the different groups out there in the community will happen automatically, and there's no question here of saying, "We're going to hire you because you're an aboriginal" or whatever.

I think this is the point we really have to make, because to bring in legislation that did require in any way that somebody who was not the best-qualified was going to be given priority because of the group he or she came into I think would be self-defeating and would not lead to a better society in the long run. I just wondered if you'd like to say a little more about that.

Hon Ms Ziemba: I thank you for this opportunity because I think that's very clear in our intention. Statistics show, and we talked about those statistics on many different occasions, that women, people with disabilities and visible minority and aboriginal people do have the qualifications, they're trained, they're able and wanting to work in their specific careers, but unfortunately are usually, if they are employed, underrepresented in the workplace, meaning that they are not working in the workplace their qualifications intend them to do and they have taken on jobs only to be able to get into that workplace but not the ones they are qualified for.

Of course, I can go back through those statistics, and they're very clear on paper. Aboriginal people are very underrepresented in the workplace even though, when you see the college and university graduates, they sometimes have a higher graduation than the other people in the population. People with disabilities, now living in the community, going through the school system, having been through college and university, very capable, very able to be represented in the workplace: They are not afforded the opportunity to even have an interview; they're rejected even before they get to the interview process.

Those are the things that employment equity will change, and we've heard the stories. Individuals who have called up for an interview, having seen an advertisement -- "Oh, yes, you have wonderful qualifications" -- get to the door: "Oh, I'm sorry, the job has been already taken." That's because of either the colour of the skin or because of the disability or their gender. Those are not the types of things we want to see in Ontario.

We want to see a real, true, fair and equitable process in place in which, if people are qualified, if they have the experience, if they meet the requirements of the job, they are at least interviewed and given that opportunity to compete on a level playing field. That's really what employment equity is: It's levelling the playing field, making everybody have that equal opportunity and, once in the workplace, afford equal opportunity to proceed through promotion and have the training afforded them. Those are very, very important fundamentals of this bill.

Mr Derek Fletcher (Guelph): Thank you for being here this afternoon. I was just going over some of the things that Mr Curling said. He said that as far as employment equity is concerned, we should assist to identify and then help remove barriers. Bill 79 is doing that, isn't it?

Hon Ms Ziemba: Yes, it is.

Mr Fletcher: I thought so, yes. Then enforcement laws, also: There are enforcement laws in Bill 79?

Interjection.

Mr Fletcher: I was just wondering if Mr Curling was reading the same thing I was reading.

When I listened to the Conservatives -- I remember when I was going through my history books and reading about slave owners way back when saying: "We don't have to change anything. Some people like their lot in life." When I got that, I thought, "That's a strange way of thinking, that if we don't do anything, things will evolve." How long do we wait until things evolve? Is there really a need for legislation? Is this a push to help the evolution?

Hon Ms Ziemba: There is a need for the legislation. Although we have employers who've done a wonderful job and have certainly tried to implement employment equity, even if we are going to give those employers an equal opportunity for competitiveness that we should be affording them, we must make sure that everybody has an equal opportunity and that other employers practise employment equity practices.

But we can't wait for everybody to catch up. If we wait, then in Ontario we are wasting those valuable human resources that we have at our disposal, that we can use to put our province ahead in the marketplace. That's what employment equity's about as well. It's not just about fairness -- which is important; I think the justice and equity part of employment equity is extremely important -- but as we look on these very challenging times that Ontario faces, we also have to make sure that our province is positioned to be able to complete fairly around the world. If we have the best-talented people in our workplaces, that will make sure that this province is positioned in the global marketplace, that we can trade, that we can have the people with the knowledge and the experience who will give those workplaces that competitive edge.

That's what Ontario really is all about. It's about people coming from many different places, sharing in one common goal, and that's to live side by side in a harmonious way but at the same time to make this the best place to live in. I think employment equity is part of that whole agenda and I think it's very imperative for us to move on it, to make sure that Ontario can compete.

Mr Fletcher: Are you twisting anyone's arm as far as trying to get employment equity is concerned? From everything I'm listening to from the opposition, you're twisting the arms of the business community, of labour, of everyone. It seems like you're twisting arms. Through the consultation, was there a twisting of arms or was there a cooperative approach to actual employment equity?

Hon Ms Ziemba: The process we went through was very interesting for me. We sat down at a table with people who had varied interests, who came from very different perspectives, and of course the one thing they had in common was that they shared a love of Ontario, but they really did have different agendas. I think we came out of that process with people sharing ideas and we saw people change some of their viewpoints and mellowing a bit and modifying their aspirations so that they could bring forward the best possible bill that would work and would be effective.

The consultations across Ontario, not just in my advisory group, again I think was a new process of bringing people together in a different way so that we could share a common objective. That has been very important, something we've all learned from and that I hope we can build on in the future.

But yes, people came very cooperatively to this process and continue to do so. One of the very finest things I have enjoyed through all of this is that even people we have not gone to have come forward to say they would like to lend their support. For instance, the vice-president of the Royal Bank has offered his support; it's not somebody we had sought out, but he offered us his support in making sure that this bill went forward because he believes in it very strongly. We welcome that type of cooperation and that type of wanting to help us. If we can all work together, that's extremely important.

Mr Fletcher: I know my colleague has some questions.

The Chair: Ms Harrington, one last question.

Ms Margaret H. Harrington (Niagara Falls): You've said that this bill is very important and fundamental, and I certainly agree with your statement that it is both a social justice and an economic issue for this province. I also did hear the Liberal and Conservative opposition state something similar. I know Mrs Witmer said it is going to have a profound and lasting impact on the province, and Mr Curling said he does certainly believe in employment equity.

Because this bill is undoubtedly so important, I believe this committee should be able to travel, to consult directly with the people across Ontario, especially those people in the north. The disabled people of course will have more difficulty in travelling.

I want to tell you, Madam Minister, that the attitude of the opposition parties in subcommittee was this: They outrageously insisted that this committee would not travel. When every other committee sitting at this time is travelling, they voted against travelling. They voted against having four weeks; they wanted it in three weeks. That is their attitude.

Mr Curling: I changed it now; I want to travel.

Ms Harrington: Once again, the system is working against aboriginal people, the majority of whom live in the north. The system is working against the disabled people, who obviously have much more difficulty travelling, whether it is by plane or by car.

That is the way they treat this. I want to ask you your opinion on why travelling is important.

Hon Ms Ziemba: I thank you for your comments and sharing with me, because obviously I was not at the subcommittee and so would not have heard the dialogue and the interchange. As we talk about employment equity, about fairness and being open and accessible to the workplace, at the same time we're denying people the access to an open process, which does surprise me. Of all bills, that we would deny people that opportunity to be able to come to the hearings seems quite ironic. As I heard your comments and heard subsequently about what the opposition members were saying, it does really make me wonder. Also, the fact that first we wanted the four weeks and they wanted three, and now they want four -- it's rather confusing.

I think we have to really be very clear about this. If we are to have a democratic process, this is a very large province and people should have access to a committee. They should have access to the whole process. Travelling was very important to me. I wanted to hear from the people in Thunder Bay, which I'm going to do, because I do intend to make sure that I, at least, have the opportunity to be afforded the information that might not be able to get to this committee.

The Chair: Minister, I want to thank you for your presentation and thank you for your participation with this committee.

Hon Ms Ziemba: Thank you and good luck.

The Chair: I'd like to propose a five-minute pause, and then we'll begin at 3:50.

The committee recessed from 1543 to 1555.

The Chair: I'd like to reconvene the committee. I'd like to welcome the Deputy Minister of Citizenship, Naomi Alboim. Naomi, you might introduce the person with you.

Ms Naomi Alboim: Sitting with me is Katherine Hewson, who is with the group within the ministry that has responsibility for working on both the regulations and legislation.

The Chair: Naomi, you have approximately one hour. You don't have to take the whole hour if you don't want to, but we have up to one hour.

Ms Alboim: Okay. What I thought I would do is do a run through the act itself, in some cases really just putting into lay language what is in the act and in other cases going into a little bit more background, a little bit more detail, particularly in those areas where there may be some need for clarification or a need for amplification, given some of the misconceptions that we have heard exist about some of the areas. I'll do that as quickly as I can but there is a lot to go through.

First of all, in terms of the preamble, there's already been discussion about the preamble here today, but I just wanted to indicate that it does set out the context for the Employment Equity Act and does refer to the fact of higher rates of unemployment faced by aboriginal people, people with disabilities, members of racial minorities and women; the fact that more employment discrimination is faced by those groups of people than by others in our society; the fact that there is underrepresentation, particularly in senior management positions, for these groups and overrepresentation of these groups in low-paying positions where there is little chance of advancement; a recognition that this lack of employment equity exists both in the public and the private sectors and that this lack of employment equity is at least partially based upon systemic and intentional employment policies and practices which together have a discriminatory impact.

If I could take a moment just to differentiate between "systemic" and "intentional," systemic policies and practices are usually long-standing, apparently neutral practices which result in the disproportionate exclusion of certain groups from the workplace. Such practices could include, for example, inappropriate skill or qualification requirements which are not linked to the true requirements of a job, inflexible work arrangements and work hours, selective recruitment practices, inappropriate assessment or interviewing techniques, and perhaps the creation of a workplace atmosphere which fails to recognize the needs and characteristics of different groups. Those are the kinds of things that we would refer to as systemic policies and practices that have the effect of discrimination.

The other kind of practices would be those that intentionally lack neutral characteristics. Those are ones that directly intend to restrict or limit access to employment opportunities by certain groups. These could include, for example, the characterization of certain jobs as either male jobs or female jobs, the refusal to hire particular groups of people because of particular stereotypes that may exist or the refusal to make a workplace or a particular job accessible to a person with disabilities.

Since Ontario's Human Rights Code was enacted, the people of Ontario have recognized the rights of all citizens to fair and equal treatment in all aspects of society, obviously including employment. The Employment Standards Act and the Pay Equity Act have extended this principle of equality in employment. The purpose of this particular act is to build upon these other acts. The aim of employment equity is to extend further the principles of fair and equal treatment and access to employment opportunities throughout Ontario and to ameliorate the long-standing employment conditions that have been faced by aboriginal people, persons with disabilities, members of racial minorities and women.

Subsection 1(1) just reaffirms the principle of equal treatment in employment that is set out in the Human Rights Code. I won't go into detail on the rest of section 1. I think it's fairly self-explanatory.

Paragraph 1 of section 2 deals with the employment equity principles. This paragraph entitles every aboriginal person, every person with a disability, every member of a racial minority and every woman to be considered for employment, to be hired, treated and promoted free of any barriers.

Paragraph 2 of section 2 deals with the issue of representative workforces. This subsection requires all workplaces to reflect the designated group population of their community in all occupational categories and at all levels of employment. This is clearly a long-term goal. This is not a goal that is expected to be achieved in a single employment equity plan term, for example. It's based upon the assumption that when special measures are put in place and barriers are eliminated, the workplace will eventually be representative of the population of the surrounding community at all levels of employment.

Paragraph 3 deals with the requirement of employers to ensure that their employment policies and practices related to recruitment, employment and promotion do not discriminate either directly or indirectly against the four designated groups.

Paragraph 4 introduces the notion of positive measures and that section requires every employer to implement positive measures for the recruitment, employment and promotion of the designated groups. Positive measures are policies and practices designed specifically to benefit members of a particular group. They are usually time-limited. Special accommodation measures for persons with disabilities, training programs for female managers or recruitment practices aimed at a specific designated group could be examples of positive measures.

Going on to part II of the act, which is really the interpretation section of the act, there's a listing of definitions there. I will not go through all of them, but there are a few that I think may be worth highlighting.

The first one is "bargaining agent," and I think what's important to recognize here is that the bargaining rights referred to in this subsection are rights already established by any act -- for example, the Labour Relations Act and the Crown Employees Collective Bargaining Act.

The "broader public sector" refers to those employers who are identified in the schedule. The schedule that will be used for this act is the schedule that was used for the Pay Equity Act and most recently used for the Social Contract Act. The "broader public sector" does not include the Ontario public service.

In terms of the definitions for "employee" and "employer," an employee for the purposes of this act is defined as a person who's determined to be an employee in accordance with the common law. The common law traditionally looks at a fourfold test to determine the existence of an employment relationship, and those four aspects of the test are control, ownership of tools, chance of profit and risk of loss. There has been some discussion about that in our consultations. Similarly with "employer," that fourfold test is what is referred to here.

I don't think there's need to go through the other definitions. Perhaps I could turn now to subsection 3(2) and the Ontario public service. Subsections 3(2) and 3(3) differentiate between what would be considered part of the Ontario public service and what would not be, and the differentiation is whether the employees are appointed under the Public Service Act. So those who are appointed under the Public Service Act would be considered part of the OPS; those not, would not be. This subsection would prevent the province from being found to be the employer for employment equity purposes for anyone working for a crown agency, board or commission who was not a civil servant, a public servant or a crown employee under the Public Service Act.

Subsection 3(4) deals with existing employers and the number of employees, given that, as you know, the obligations of the act depend on the size of the employer. This makes it clear as to when an employer has reached a particular size so that certain obligations kick in. What is important in this section I think to identify is that the number of employees of an employer is the sum of all the employees of the employer throughout Ontario and the number is not specific to a particular workplace or geographic location. The act then goes on to set out the different obligations.

Section 4 just deals with who the designated groups are.

Subsection 5(1) I think is important to really spend some time on. This is in fact how the Employment Equity Act relates to the Human Rights Code provisions. Given some of the discussion earlier today and in the public domain about reverse discrimination etc, I think it might be useful to talk about this in some detail.

Subsection 5(1) affirms the special employment provisions of the Ontario Human Rights Code that are contained in sections 11(17) and sections 24(1)(a) or (b). These sections prevent an employer from being found in violation of the act when the employer conducts legitimate hiring practices established by the Ontario Human Rights Code.

This subsection does not exempt any employers from the requirements of the act. It simply allows employers to follow legitimate special employment practices when fulfilling their employment equity obligations. For example, a women's shelter can continue to employ only women, but it must ensure that it meets its employment equity obligations with respect to racial minority women, aboriginal women and women with disabilities.

Section 11 of the Ontario Human Rights Code concerns constructive discrimination. This subsection indicates that requirements, qualifications or factors which have an adverse impact are discriminatory except where these requirements, qualifications or factors are reasonable and bona fide, or where the code indicates that to discriminate because of such ground is not an infringement of a right.

Section 11 of the code states that a requirement qualification or factor cannot be considered reasonable and bona fide unless the needs of the group of which the person is a member cannot be accommodated without undue hardship on the part of the person responsible for accommodating those needs.

Section 17 of the code concerns handicaps. This subsection states that a person with a handicap who is not capable of doing the essential duties or requirements to exercise a right is not being discriminated against. However, a person with a handicap cannot be considered incapable of doing essential duties or requirements unless that person cannot be accommodated without undue hardship on the part of the person responsible for accommodating those needs.

Clause 24(1)(a) of the code concerns special employment. This subsection enables certain types of organizations to employ primarily or exclusively persons identified by particular characteristics; for example, race, sex or handicap. This subsection of the code requires that the qualification required by an employer be a reasonable and bona fide qualification because of the nature of employment.

C·ause 24(1)(b) of the code also concerns special employment. This subsection states that it is not discriminatory in employment to consider age, sex, record of offences or marital status of an applicant. These characteristics must be reasonable and bona fide qualifications because of the nature of the employment.

What this section allows for is the Employment Equity Act to refer specifically to those provisions in the Human Rights Code that allow for special employment practice. So there is absolute coincidence between the employment act and the Ontario Human Rights Code in this regard.

Section 5(2): This subsection deems existing seniority rights with respect to a layoff or recall to employment after a layoff not to be barriers for the purpose of employment equity. These seniority rights deemed not to be barriers to employment equity must have been acquired through a collective agreement or an established practice of the employer. Other seniority rights, such as those dealing with hiring, training, promotions, transfers, shifts and benefits are not affected by this subsection.

If we can now go on to section 6 and the application, subsections 6(2) and 6(3) recognize that employers change the size of their staff and that employers' obligations change accordingly. The remaining sections of this particular section just deal with when there are changes, what kicks in at what point in time. It also recognizes that small employers do not have the same obligations in the act as large employers. For example, those under 10 in the broader public sector and those under 50 in the private sector do not have the same obligations. When those organizations reach those numbers, they do have those obligations.

Police forces are not covered by the Employment Equity Act, given that they are subject to a separate employment equity process established by section 48 of the Police Services Act, and section 7 just reaffirms the obligations of the crown.

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Part III is the obligations section.

Subsection 8(1) states that every employer must implement and maintain employment equity by recruiting, employing and promoting employees according to both the employment equity principles in the act and in accordance with the employer's employment equity plan. Subsections (2) and (3) deal with the obligations of employers to ensure that their supervisors and managers understand their obligations and observe those obligations. Subsection (3) deals with the obligations of those asserting those responsibilities of being aware of and acting in accordance with the act.

Subsection 9(1) deals with the collection of workforce information, otherwise known as workforce surveys. This requires every employer to gather information about current designated group representation in the employer's workforce. The purpose of such a survey would be to provide employers with a snapshot of their workforce, to allow employers to determine the extent of underrepresentation of designated group members in their workforce, to assist employers in the setting of numerical goals and qualitative measures and to provide employers with a means of seeing how well their employment equity plan achieved better representation of designated groups. There is a draft reg, as you know, that covers specifically the manner in which this information is to be gathered.

Subsection 9(2) is a section that grants employees the right to refuse to answer questions and makes answering questions voluntary. This subsection clearly supports the principle of self-identification which is reflected later in subsection 17(2).

Section 10 deals with review of employment policies, otherwise known as employment systems review, and this section requires every employer to review the employer's employment policies and practices, and the manner and content of that review is described in the draft regulation that was released about a month ago.

Section 11 deals with the employment equity plan itself. It requires every employer to prepare an employment equity plan in accordance with the regulations, and the draft reg does in fact outline what is required in this regard. The plan prepared by each employer has to cover all employees employed by the employer throughout Ontario, although in the draft reg it provides quite a lot of flexibility in terms of subcomponents or chapters of a plan to allow for different parts of an employer's workforce. It must contain, however, a section on elimination of barriers, on positive measures, on implementation of accommodation measures, goals and timetables for the qualitative measures I just mentioned above, goals and timetables for workforce composition, otherwise known as numerical goals and timetables, and potentially for other matters.

Subsection 11(2) deals with the plan certificate. This requires every employer to file a certificate with the Employment Equity Commission rather than filing the actual plan to the commission. The content of that certificate is also described in the draft reg that was circulated. A copy of the plan is only required to be filed at the request of the commission. It is not mandatory otherwise.

Section 12, the implementation of the plan: This sets the standard for implementation of the plan, and the standard is that every employer must "make all reasonable efforts to implement the employer's employment equity plan and to achieve the goals set out in the plan in accordance with the timetables set out in the plan." That standard recognizes that this bill is all about proactive planning, that this bill is all about addressing systemic discrimination, and it recognizes the need for flexibility from workplace to workplace, given that the circumstances will be very different and require different kinds of both measures and time frames for the implementation of those measures.

Section 13 deals with the review and the revision of the plan, which indicates that a review and revision is necessary in accordance with the regulation. The draft regulations require that revision every three years. Plan certificate is necessary. It's necessary to file a certificate every time the plan is revised, which again is every three years. There is no requirement to file a plan unless the Employment Equity Commission requires it.

Section 14 deals with joint responsibilities of the employer and bargaining agents and obviously applies only to unionized workplaces. This section recognizes the really important role a bargaining agent can play in gaining acceptance and understanding of the principles of employment equity, as well as the link that will exist between an employment equity plan and the provisions of an existing collective agreement.

In subsection 14(1), business and labour are treated as partners in the development of the employment equity process.

Subsection 14(2) articulates more which specific areas require joint responsibility, and that is the development of the workforce survey, the review of the employer's employment policies and practices, the preparation of the employment equity plan and the review and revision of the employment equity plan.

The joint responsibilities apply only to that part of the employer's workforce which is represented by the bargaining agent. The employer retains sole responsibility for all employment equity obligations related to non-union employees. However, there are consultation requirements for those employers with non-union employees. Also, there are, further on, consultation requirements in terms of designated group members that are covered in the regulations.

Subsection 14(3) deals with those workplaces where there is more than one bargaining agent, and this subsection sets out the process which must be followed where that is the case. This subsection allows for efforts to be as effective and efficient as possible by requiring the employer and each of the bargaining agents to establish a committee to coordinate their joint responsibilities.

This committee, as indicated in the draft regulation, will enable the workplace parties to collectively determine the manner in which their joint responsibilities will be carried out. The committee, according to the act, is made up of one representative each of the bargaining agents and one representative from the employer. In the draft reg, that was changed to allow for equal numbers of employer reps and bargaining agent reps. It's expected that an amendment will be necessary to bring that in sync.

Subsection 14(4) emphasizes the need for employers and bargaining agents to carry out their joint responsibilities in good faith and, it says specifically, separate from the collective bargaining process. That, again, is to confirm the parties' obligation to approach employment equity as a partnership process.

Subsection 14(5) raises those situations where there might be a conflict between the employment equity plan and terms of the existing collective agreement. This subsection sets out how those conflicts should be dealt with, by requiring an amendment to the collective agreement to resolve any conflict between the two. The intent of this particular subsection is to indicate the paramountcy of the employment equity plan in the workplace once the parties have agreed to that employment equity plan.

Subsection 14(6) deals with the right to information. The act states that the bargaining agent must be provided with that information which is necessary to enable the bargaining agent to carry out its joint responsibilities. Those areas of responsibility deal with the workforce survey, the review of the employment policies and practices, the preparation of the plan and the revision of the plan. That availability of information is necessary to allow the bargaining agent to fulfil the joint responsibilities that it has.

Section 15 deals with consultation with employees. This section requires employers to consult with their employees during the development, implementation, review and revision of the employment equity plan. It's in the areas of workforce survey, review of the employment policies and practices and the preparation, implementation, review and revision of the plan.

The need for that consultation recognizes the importance of the participation of employees in these processes and will also help the employer address the concerns and interests of both designated groups and non-designated groups within the workplace, thereby increasing understanding and acceptance of the principles of employment equity. There is in the draft reg, again, regulations that prescribe the manner in which that consultation should take place.

Section 16 deals with the posting requirements that will be set out in regulations and again the draft reg covers that. It's also the employer's obligation to ensure that that information is accessible in the workplace.

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Section 17 deals with employment equity records. This is where the emphasis is placed on self-identification in subsection 17(2), which states that the employment equity records respecting membership in the particular designated groups must contain only that information which has been voluntarily given by the employee. This subsection prohibits an employer from maintaining records with respect to designated group membership which have been prepared without the consent of the employees in question.

This is an area that is of tremendous concern to designated group members, who want to make sure that they are the ones who control what is in their records about their membership or not in those designated groups.

Section 18 deals with reports to the commission, and this allows for regulations to prescribe the manner, content and timing of any reports. As you will know from the draft reg, reports are not required on an automatic basis; reports are only required when requested by the commission. Otherwise, it is certificates only that will be filed with the commission.

Section 19 deals with exemptions, and subsection 19(1) deals with a regulation to define an aboriginal workplace. We have not been successful in concluding the consultations as of yet with the aboriginal communities about this. There is therefore no draft reg yet available, and we will be consulting this fall with the aboriginal community about the development of that particular regulation.

Subsection 19(2) deals with the possibility of either exemptions or modified requirements, in this case for some of the smaller broader public sector employers. This allows for those between 10 and 50 employees to have modified requirements. The draft reg does propose modified requirements both for this category as well as for 19(4), which deals with the private sector employers between the sizes of 49 and 100.

The modified requirements that are in the draft reg relate to no numerical goals being required, modified employment systems being carried out, and modified information required on the certificates that are submitted. Again, the act allows for, should the size of organization change, that it then have additional obligations imposed upon it and that a modified requirement ceases to exist if that organization grows.

On to section 20 and the implementation: This just lays out the timing to comply for existing employers, and ranges from the OPS, which is required to comply with its first employment equity plan 12 months after the effective date, up to small private sector employers from 50 to 99 employees having 36 months from the effective date to have concluded their workforce survey, their employment systems review and the development of their first employment equity plan.

New employers are covered both in the broader public sector and the private sector as to when their obligations kick in after they come into existence, and section 21, both subsections (1) and (2), deals with what happens when they reach certain levels or sizes.

Part IV deals with the enforcement of the act.

Section 22 gives the Employment Equity Commission authority to conduct audits. It can conduct those audits to determine whether or not an employer is complying with the act. Those audits can be conducted at any time that the commission determines to be appropriate within certain parameters that are outlined in subsection 22(2). There must be a reasonable time. They must enter a place only at a reasonable time. They can inspect relevant documents, they can remove and copy relevant documents and they can question individuals.

Those powers are like any other employment law. They are identical to the ones in the Pay Equity Act and in the Employment Standards Act. They are not more onerous or less onerous than other employment law states. They must show identification, they must have the consent of the owner and they must have a search warrant. There are a number of provisos here that are the same as in other employment law.

On to subsection 23(1): This provides the commission with the authority or the ability to effect a settlement with any employer that the commission believes is not in compliance with part III of the act, and any settlement must be in writing.

Subsection 24(1) provides the commission with the authority to order compliance without a hearing. It can make an order against an employer if the commission considers that the employer has not conducted a workforce survey in accordance with the act or has not conducted a review of the employment policies and practices in accordance with the act, if the plan itself does not comply with the act, if the employer fails to make the required filings of certificates, fails to consult with employees, fails to maintain appropriate records or fails to submit required reports.

The powers of the tribunal are listed in part in subsection 24(4), and that means that the tribunal has the jurisdiction to review orders of the commission. On appeal, they can vary, rescind or confirm any order of the commission.

Subsection 24(5) states that if there is no appeal, the orders of the commission are deemed to be orders of the tribunal. That allows for the orders of the commission to be enforced as if they were orders of the tribunal without the necessity of a hearing before the tribunal.

Subsection 25(1) allows the Employment Equity Commission to apply to the tribunal for determination, and that may be made when it's not readily apparent or readily ascertainable whether or not an employer has complied with the act.

Subsection 25(2) deals with deemed non-compliance. If the commission shows to the tribunal that the employers failed to take any steps required by the plan or that the employers failed to achieve the goals set out in the plan in accordance with the timetables, the employers have the burden of proof that their plan does comply with the act or that they have made all reasonable efforts to implement their plan and achieve their goals. That burden is on the balance of probabilities.

Subsection 26(1) deals with the grounds upon which any person other than the commission can apply to the tribunal, and those grounds are if an employer fails to take any steps required by the plan, if an employer fails to achieve the goals set out in the plan in accordance with the timetable or if an employer fails to implement a settlement with the commission. The defence there of the employer is that the plan does comply or that the employer has made all reasonable efforts to achieve the goals.

Subsection 27(1) deals with those instances where either an employer or a bargaining agent applies to a tribunal if the parties are unable to fulfil their joint responsibilities. This, given that it's flexible in terms of when they can apply, will prevent the parties from having to wait until their time for compliance has expired before resolving any conflict between them. They can go early on in the process to get some assistance in this regard.

There is a mandatory obligation, though, for an employer to notify the tribunal if the employer and bargaining agent have not completed within the time required. The entitlement, however, does allow the bargaining agent to do that as well, even if the employer has failed to do so.

Subsection 27(4) allows the tribunal's authority to make an order it considers just in any application brought by the employer or the bargaining agent. However, it must be emphasized that this is limited to that part of the employer's workforce which is represented by the bargaining agent.

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Subsection 28(1) gives employees the right to apply to the tribunal. An employee can apply to the tribunal if he or she feels that the employer and bargaining agent have failed to carry out their joint responsibilities in good faith or if the employer fails to apply to the tribunal under subsection 27(2).

Again, the tribunal may make any order it considers just in any applications brought by an employee, which could include the removal or modification of the terms in an employment equity plan which the tribunal thinks was not concluded in good faith.

Subsection 29(1) deals with the prohibition of intimidation, coercion, discrimination or penalty against any person exercising a right under the act and gives the tribunal the jurisdiction to hear those applications. That was put in specifically to encourage employees to exercise their rights under the act without fear of any reprisal and to deter employers or any other parties from interfering in the exercise of a right under the act. The tribunal in these cases does have the authority to order, potentially, compensation, rehiring, rescinding any penalty, or preventing a future contravention in those cases where there has been intimidation, coercion, discrimination or penalty.

Section 30 deals with notice to the commission by the tribunal if in fact something has been brought forward to the tribunal, and the obligation, complementarily, of the commission to advise the tribunal if it is in the process of auditing an employer. This will allow for no duplication. It prevents simultaneous proceeding against a single employer both of the commission and of the tribunal, and requires the two organizations to keep each other up to date and communicate with each other about the status of particular cases. The results of any audit filed by the commission must be filed as evidence at any hearing held by the tribunal so it has the benefit of that information.

Section 31 deals with mediation. That requires all applications to the tribunal to be referred to an employee of the tribunal who may attempt to settle the matter. It also says that if there is any kind of settlement, that has to be in writing. If, on the other hand, an application is not settled by mediation or if an employee of the tribunal thinks that mediation will not be successful or cannot result in a settlement, the tribunal will hold a hearing.

Section 32 deals with the parties to an action before a tribunal, and that is the interested employer, the interested bargaining agent and any other person specified by the tribunal. The Employment Equity Commission can apply to be a party to any application.

Subsection 33(1) deals with the power to make orders. The tribunal can make an order to establish an employment equity plan, to amend an employment equity plan, to require an employer to create an employment equity fund, and to appoint an administrator responsible for developing, implementing, reviewing or revising an employment equity plan at the employer's expense.

"Reconsideration" allows for the tribunal to reconsider, vary or revoke any of the decisions or orders.

Subsection 34(1) gives to the tribunal exclusive jurisdiction to determine the matters before it, including all questions of law and fact. It also states that the decisions of the tribunal are final and binding, and that would restrict the circumstances under which a decision or order of the tribunal can be judicially reviewed.

Section 35 deals with offences, particularly in terms of confidentiality of information, to begin with. No one can use or disclose information collected from employees except for the purpose of complying with the act, both in terms of obligations and enforcement. It also makes it an offence to wrongfully disclose such information. Similarly, people cannot hinder, obstruct or interfere with an employee of the commission while they are in the course of an audit. They can, however, refuse to produce documents unless a warrant has been obtained, if that's required. There is an offence for people who are guilty of contravening the obstruction clause, and that is a fine of up to $50,000.

Section 37 deals with intimidation again. These clauses confirm the right of all persons to be free from intimidation, coercion, penalty or discrimination for exercising a right under the act, for participating in proceedings under the act, for disclosing information required by the act or complying with or seeking enforcement of the act or an order. That can be enforced by application to the tribunal and it makes it an offence.

Section 38 just deals with that offence, subject to a fine of up to $50,000.

Section 39 just deals with the requirement that the tribunal consent to any prosecution.

Part V deals with the establishment of the Employment Equity Commission and just goes through the Lieutenant Governor in Council appointment of the commissioner and leaves it up to the LGIC for composition as well. Employees will be appointed under the Public Service Act.

The functions of the commission are listed in subsection 41(1): to further the principles of employment equity; to monitor employment equity in the act; to develop policy on employment equity; to assist stakeholders in complying with the act; to review existing seniority systems; to educate the public about employment equity; and to carry out functions assigned by this or any other act.

You'll see here that much of the focus is on facilitative, educative support to the implementors of employment equity as well as the monitoring of employment equity.

It allows for the commission to conduct public consultation; to assist in the monitoring and development of assistance to the implementors.

It allows for the development of policy directives under subsection 42(1), and those policy directives will assist the tribunal in dealing with matters brought before it.

It requires the tribunal to consider the commission policy directives.

It allows the commission to establish its own rules.

It requires an annual report to be submitted by the commission to the Minister of Citizenship to be tabled in the House.

It allows for the establishment of advisory councils to advise the minister, the ministry, the Employment Equity Commission in terms of the commission's mandate and to act as a link between the commission and communities, and states very specifically that the minimum representation on those advisory councils must be from the major stakeholders, from business, labour and the designated groups. Those advisory councils could be provincial or regional.

The Employment Equity Tribunal is established as a result of section 46 -- again, some description about the role of the LGIC in designating chairs and designating composition, vice-chairs.

Employees, again, would be named under the Public Service Act.

It allows for the establishment of panels of the tribunal for presiding officers.

I'm just going through this fairly quickly.

In terms of part VI, this deals with government contractors and the area of contract compliance. This establishes a contract compliance provision for all crown contracts. All contracts with the crown or an agency of the crown are deemed to contain a condition requiring the party to the contract to comply with its obligations under the act.

One thing that I think needs to be clarified is that this section applies only to those parties who already have obligations under the act. For example, those that are governed by the federal legislation, because they are within the federal domain, or those that don't have obligations under this act, are not covered by the contract compliance program.

Government grants are considered similarly in terms of the contract compliance program.

I'll go now to the regulations, subsection 50(1), just to identify to you those that the draft regulation now covers.

Number 1, the membership in a designated group, is in the draft reg; 2 is not because we have the schedule; 3 is not; 4 is not; 5 requires additional consultation with the construction industry and there is not a draft reg at this point in time for 5; 6 is in the draft reg.

I'm assuming you're following so I don't have to tell you what they --

Mr Murphy: Can I ask you just to start --

Ms Alboim: Sure. Number 1, the membership in designated groups, is in the draft reg; 2, about employers in the broader public sector, is not because it's a schedule -- in fact, it is because we're using the schedule, but there's no change to that; 3 is not in the draft reg; 4 is not in the draft reg; 5, we are undertaking some further consultations with the construction industry and there is no draft reg right now for number 5.

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Number 6 is in the draft reg; that's the workforce survey. Number 7, the employment systems review, is in the draft reg. Number 8 is in the draft reg; that's the employment equity plan. Number 9 is in the draft reg.

Number 10 is in the draft reg; number 11 is not at this point. Number 12 is in the draft reg and number 13 is in the draft reg. Number 14 is in the draft reg. Number 15 is in the draft reg; number 16 is not; number 17 is not.

"Numerical goals," which is a separate section in this section -- that's subsection 2 -- is in the draft reg. That's the numerical goals.

Section 50, subsection 2 provides for the authority for regulations to be drafted and there are draft regs on that.

Mr Curling: Is that 52 you're talking --

Ms Alboim: Section 50, subsection 2.

Mr Curling: Numerical goals.

Ms Alboim: Numerical goals are in the draft regs now, yes.

Part VI of the bill deals with consequential amendments and this, again, is I think a pretty --

Mr David Winninger (London South): It's VII.

Ms Alboim: I'm sorry, my eyes have started to go cross-eyed.

Part VII deals with consequential amendments and I think this, again, is something that is probably important to go through in some detail.

Section 14 of the Human Rights Code permits special programs designed to relieve hardship or economic disadvantage, or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity, or that are likely to contribute to the elimination of discrimination prohibited by the Human Rights Code.

Subsection 51(1) amends section 14 of the Human Rights Code to deem employment equity plans prepared under the act to be special programs for the purposes of section 14 if the requirements of subsection 51(1) are met.

In order to be deemed to be a special program, an employment equity plan must be found to be in compliance with part III of the act by the Employment Equity Tribunal or the Employment Equity Commission.

Subsection 33(1) and section 34 of the Human Rights Code set out the circumstances under which the Human Rights Commission may decide not to deal with the complaint before it.

Subsection 51(2) is a consequential amendment to the Human Rights Code which results from the addition of the amendment to subsection 33(1) of the Human Rights Code set out in subsection 51(3). This amendment will prevent the Human Rights Commission from dealing with certain matters which involve practices which are addressed in an employment equity plan if the criteria set out in subsection 51(3) are met.

In 51(3), if I can go through that with you: This subsection deals with the potential jurisdictional overlap between the Human Rights Code and the Employment Equity Act.

Section 34.1 is added to the Human Rights Code to set out the procedure which must be followed by the Human Rights Commission and the Employment Equity Commission when dealing with a human rights complaint arising from a practice addressed in an employment equity plan.

All complaints brought before the Human Rights Commission with respect to a matter that is addressed in an employment equity plan must be referred to the Employment Equity Commission.

The Human Rights Commission will determine whether the matter brought before it is in fact addressed in the employment equity plan.

When a matter is referred to the Employment Equity Commission, the commission must satisfy itself of four things: (1) the complaint arises from a practice that is addressed in the employer's employment equity plan, (2) the employment equity plan complies with part III of the act, (3) the employment equity plan addresses the practice in a reasonable manner over a reasonable period of time, and (4) the employer is making all reasonable efforts to implement the employment equity plan and to achieve the goals set out in the plan in accordance with the timetables in the plan.

Once the Employment Equity Commission is satisfied that these factors have been met, it must direct that no further action be taken on the matter. If no such direction is made, the matter is referred back to the Human Rights Commission for resolution.

This section was put in specifically to coordinate the enforcement measures of the Human Rights Code and the Employment Equity Act by ensuring that actions did not arise under both statutes at the same time. It ensures that cases relating to the employment equity plans are assessed in the context of employment equity and it provides for the orderly implementation of employment equity plans. Given that this act deals with a proactive, systemic kind of orientation to deal in a planned way with the removal of discriminatory barriers, it allows for individual instances to be assessed within the parameters of that planned proactive addressing of systemic discrimination. It does not take away from the right of an individual to go through the entire process of the Ontario Human Rights Commission for a situation or a circumstance that does not relate specifically to something that is in the plan that is more systemic in nature.

If an individual is discriminated against in an interview situation, for example, where they have been asked questions that are totally inappropriate and they want to take that through the Human Rights Code, they can go all the way forward in the Human Rights Commission because there is nothing in the employment equity plan that would allow for questions of that kind to be asked within an interview situation.

If it was something that dealt with a more systemic kind of situation like the availability of training programs, for example, that might be something that is planned by the employer to be undertaken but there is an orderly kind of implementation of that plan. According to this section, the individual instance would have to be weighed and looked at in terms of the reasonableness of the employment equity plan.

Section 52 just requires a review within five years of the implementation of the act and that the review be conducted by a standing or select committee of the Legislative Assembly and provides that committee with one year to conduct its review.

Section 53 just deals with when the act comes into force and 54 is the short title.

The Chair: Thank you, Ms Alboim, for the technical information that you've provided us. We'll begin with the official opposition with questions of Ms Alboim.

Mr Murphy: I have a couple. First off, I'm wondering whether you would view an addition to the preamble saying something like "that the merit principle continues to be applied," no matter how that's worded -- I mean, it could be worded as something that's clear that this act is intended not to lower standards but to remove discriminatory barriers, be they systemic or intentional -- whether you think an addition like that to the preamble would in any way impair the operation of the bill as intended.

Ms Alboim: I guess it would depend very much on the wording that was proposed. I think there is no intent in this bill anywhere to require employers to hire unqualified people, and if it's a matter of just stating that in the preamble, that would certainly not detract from the intent of the bill.

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Mr Murphy: Let me give you a specific wording, just that it be amended to include a statement, something to the effect that "the purpose of this act is not to reduce standards but to eliminate discriminatory barriers." Would that in any way -- can you see -- impact on the bill? Sorry, I don't know the person sitting next to you. I assume that's a legal adviser of some sort next to you. I'm sorry; I don't know your name.

Ms Katherine Hewson: Katherine Hewson. I would probably not want to comment on particular wording at this point in time.

Mr Murphy: A couple of other things: Under the definition of "employee" and "employer," usually, in most acts, you'll find the definition of "employer" and "employee" tend to be fairly reflective of each other, for obvious reasons. What I don't understand is why the definitions are different in the sense that "employer" seems to be broader to some degree than "employee." For example, "employer" includes anybody who regularly engages the services of others on a fee-for-service basis, but that's not a definition included in the definition of "employee." If you don't have an immediate answer, you can tell me later.

Ms Hewson: I think it would be inclusive. "Employer" and "employee" nevertheless have to be read together in the act and therefore, because an employee is an individual who is primarily working for an employer on a commission basis, the definition of "employer" would I think have to be read to include an employer of such a person.

Mr Murphy: Absolutely, which is why it makes sense, the commission, but you've added in the definition of "employer" the words "fee-for-service," which aren't in the "employee" section.

Ms Hewson: Okay.

Mr Murphy: To follow up as well, I see you've made this applicable to trustees and receivers, I assume receivers and managers. Am I to understand therefore that if a trustee in bankruptcy is appointed, of a company, this act applies to a trustee of a bankrupt company who would then have to spend the money to go through to implement an employment equity plan?

Ms Hewson: I believe that is correct.

Mr Murphy: Now, for the purposes of the definition of "employees" in terms of when you're adding up for your survey purposes, I assume then that would include all employees regardless of how long they've worked for you. I know that you have term and seasonal employee defined in the regulation, but it seems to apply only to the definitions related to what information you have to file with the commission, not to the actual content of your plan.

I'm wondering whether that was an intentional difference or an unintentional one in terms of the definition of "employee," because as I read it here you basically have to count up anyone who's an employee no matter how short- or long-term, seasonal or otherwise. It could be that youth after school, for example, on a part-time, non-permanent basis would have to be counted, but they seem to be excluded in the regulation definition in terms of what information you have to file with the commission later, and I'm not sure I follow why that's the case.

Ms Hewson: You've made reference to the seasonal employee. I think you also you would want to make reference to the term "employee" in the draft regulations, which is defined as an employee who works for an employer for less than three months.

Mr Murphy: No, I understand that, but the definition is in 47 of the regulations. That definition under 47(5) only refers to sections 45 and 46, which are merely the reports that are to be filed. It just strikes me that you've got a definition of "employee" that's narrower for the reports than it is for the plan, if you see what I mean.

Ms Hewson: I see what you mean. I think that is unintentional.

Mr Murphy: Okay. You can assist me on a definition. If I'm right the way this works, a racial minority is defined essentially in two ways: a visible minority and then a self-identified visible minority. You need to fulfil both components.

Ms Hewson: Yes.

Mr Murphy: So that if I am a non-visible racial minority, this doesn't cover me?

Ms Hewson: An employee --

Mr Murphy: I don't know. Would the Italian community -- I don't know if that's a race -- or Filipino?

Ms Alboim: The basis of the act is on self-identification within the definitions given, so the expectation is that the definitions would be provided in the survey material, education would be provided to employees about the definitions, and then it is up to the individual to read those definitions and self-identify on the basis of those definitions.

Mr Murphy: No, I understand that. What you're saying, for example -- it seems to me to be a two-part: They both have to be a visible minority and identify themselves as a visible minority. Now, I might be wrong, but that was my impression in reading it.

Ms Alboim: The basis is self-identification and the basis is within the definition given. The definition defines a racial minority as someone who is in a visible minority. Therefore, that definition would be used by individuals to make their own determination as to whether they are a racial minority within that definition or not.

Mr Curling: Let me just follow this up, then. You're saying that there's a guideline to show you if you're a visible minority. If you fall within that, then you can tick the little box and say, "Yes, I am a visible minority, according to the criteria set down." If they see nothing in those and consider themselves a visible minority -- this is what my colleague is asking -- they can't tick it then, because they're not within that defined group that you have laid down, or category?

Ms Alboim: Not exactly, because in the regulation we don't have a listing, for example, of all the subgroup possibilities. It's not as if someone has to see "Indo-Pakistani" to check off "Indo-Pakistani." The issue is, do they identify themselves within that definition, which is a broad definition, as a racial minority or not?

Mr Murphy: Can I follow up or are you --

Mr Curling: Once more, if my colleague here decided in his heart that he's black --

Interjection.

Mr Curling: This is an important question, Could you, in that --

Mr Tilson: He wouldn't use the word "black," would say "visible minority."

Mr Curling: Well, I'm just saying "black," and he says it comes under "visible minority," being black. He'll tick that, then.

Ms Alboim: The basis of the act is self-identification. If individuals, reading the definition and having understood the educational material, determine that because of their ancestry or because of their self-identification, they do belong to one of the designated groups, that is what they indicate.

Mr Murphy: Conversely, obviously, someone who is a member, but refuses to self-identify for whatever reason, is not, then, included in the calculation of workforce membership for the purposes of the survey.

Ms Alboim: Yes, that is correct. I think it's important to amplify this answer somewhat. First of all, the designated group members themselves find self-identification to be absolutely an essential part of this process. I don't want to focus on one group more than another, but particularly people with disabilities find it quite offensive that someone other than themselves would have the opportunity to identify whether they are a person with a disability or not for the purposes of employment equity. Similarly, people from the aboriginal community: Some of them want to be known as members of the aboriginal populations and others do not and have expressed real concern about having a third party identify on their behalf whether they belong or do not belong to a particular designated group.

One of the things that I think is important in the regulation, and certainly work that is going on with the Employment Equity Commissioner's office at this point in time, is to develop public education materials and to develop supports for employers and for trade unions and for community organizations to make people aware of how important it is to self-identify and to come forward and of the benefits of self-identification, and to indicate to people the importance of self-identifying accurately. I think the combination of the concerns of the designated group community and the need and provision for public education material is behind this very strong dependence, if you like, on self-identification.

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Mr Curling: I just want to follow up on that debate. Inside the workplace, the person is identified accordingly. Outside and in the geographic area, you have to be consistent in order to realize it's reflecting the community. If an individual inside who has made his own self-identification is outside a self-identification process -- do you follow me? In other words, here in the workplace you're asking for self-identification, and you want it to reflect the community outside. Is the community outside a self-identification?

Ms Alboim: Yes.

Mr Curling: So to that extent, as we go --

Ms Alboim: I don't know how many of you fill out census forms, but I think it's a law that we all fill out census forms, and that's the basis for the statistical information that exists on what the composition of our population is and what the composition in any community is. Census data, all Statscan data, is based on self-identification. You don't have people coming in and saying, "You are a racial minority." You are given a form and you are asked to self-identify what part of the world you came from or whether you are or are not part of a particular group. Census data that have served us reasonably well over the numbers of years Statscan has existed are all based on self-identification information, and that will be the benchmark that is used. Census data are the benchmark that is used. So yes, it's self-identification both inside and outside.

Mr Murphy: I'd like to focus a bit on section 11 in a couple of ways. One is the accommodation provisions, clause 11(1)(c), the positive measures, and the positive measures concept in clause 11(1)(b). One of the things I was involved in in private practice was a human rights complaint from a female worker in an employment setting that involved a lot of shift work. She was a parent. Her complaint was in essence that that shift work caused her basically to be unable to be promoted because she was assigned certain duties because she needed to be home at certain hours because of day care.

One of my questions is, is it your view that this would cover that situation or a similar situation where a day care availability issue, because of being a female parent, would in essence have an unequal impact, as the argument goes, because of shift work problems in the workforce?

Ms Alboim: There are positive measures and supportive measures. Positive measures are those that are particularly put in place to assist particular designated groups. Supportive measures are those measures that would be put in place to assist all workers in a workplace that might also help designated group members.

Something in that regard, like a more flexible approach to scheduling shifts, more flexible working hours, alternative working arrangements, for example, could be a supportive measure that would benefit everybody in the workplace, but would also allow designated group members to take advantage of this particular opportunity to allow for things like child care provisions to be put in place. We would see alternative work arrangements or flex time or those kinds of things as an employment equity measure that benefits all workers in the workplace.

Mr Murphy: The flip side being, obviously, from at least an employer's perspective, what measures employers fail to take would count as being in breach of the act for the purposes of either the commission or the tribunal if they end up being different, in policy as opposed to personnel. The point being, in other words, if something like 30% of the females in the workforce are parents as well -- I think something like that, if I remember the 1991 census data -- the question then is, can it be a legitimate complaint, for example, that the failure of an employer to assist in providing day care is failure to provide a positive measure or an accommodation?

Ms Alboim: To actually provide day care?

Mr Murphy: Yes.

Ms Alboim: Okay. Let me backtrack a little bit. What would be required in a workplace is for the employer, either in joint responsibility with the bargaining agent or in consultation with non-union employees, to undertake an employment systems review to look at all the employment policies and practices that exist in the workplace and to determine whether any of those policies and practices have an adverse impact on particular designated groups or create barriers that prevent full participation of the designated groups.

If it is determined that a particular workplace practice does cause a barrier or does have an adverse impact, and that is identified as part of the employment systems review, the legislation would require a measure to be put into place, in terms of a plan to address that, that makes sense for that particular workplace in a way that is possible and practical and reasonable over a time period that is practical and workable for that particular workplace so that there is a relationship between what barrier exists and what measure might be appropriate.

I can think of a lot of measures that might be more practical, workable, affordable, reasonable than requiring an employer to establish an on-site day care to respond to a particular barrier that has been identified in the employment systems review.

Mr Murphy: And that's fair, but under this bill that decision you've just made -- you can think of ones that would be less costly -- that decision, though, is the commission's and then the tribunal's?

Ms Alboim: No, the decision is for the workplace parties to determine what is a reasonable plan to put into place that includes measures that have goals and timetables associated with them to respond to them.

Mr Murphy: But the commission has to certify that the plan --

Ms Alboim: No.

Mr Murphy: Well, it does for the purposes of the Human Rights Code complaint procedure in section 53.

Ms Alboim: Okay. If there is a human rights complaint lodged, then a particular process kicks in. Absent a human rights complaint --

Mr Murphy: Or a complaint by any person to the commission about the plan?

Ms Alboim: That's right, but the reasonableness provision is the one --

Mr Murphy: Oh, granted, absolutely. It's subject to a reasonableness test, but the Human Rights Commission is now taking the complaint about the magazines in the corner stores. It's really then up to the commission, at least in the cases it wants to take, the interpretation of reasonableness.

Ms Alboim: Again, if I could just backtrack for a moment, the intent of the whole bill is to allow for the workplace parties to identify barriers, to come up with solutions to those barriers and to develop a plan that makes sense for that particular workplace.

Mr Murphy: I agree. I'm not arguing about the intent of the bill. I suppose I'm doing the lawyer's task of saying, "All right, let's follow it through and see what happens." The reality is that I came from a workplace environment where the issue of maternity leave and its impact upon promotion in a law firm environment was a very big issue, and how you resolve that, what you do and how you accommodate that issue in terms of stepping up the grid was a very real issue. The question is, what are the proposals to deal with that problem? Then it comes into the reasonableness of those measures, and that's a question to be interpreted by the commission. I'm trying to get a handle on how far that can be stretched, given our experience with the Human Rights Commission. Even Alan Borovoy is quoted today as saying he thinks the commission is going too far in a few places.

I'm not debating the intent of the bill or objecting to the intent; I'm just trying to work through how far it, as drafted, can go.

Ms Alboim: Ultimately, if something goes to the Employment Equity Commission or to the tribunal as a result of concerns lodged, yes, it would be up to the tribunal to determine whether something was a reasonable response or not.

The Chair: Mr Murphy, one final question.

Mr Murphy: Oh, my goodness; I'm barely through this.

One question I do have relates to the collection of information in terms of the -- what is it -- the census agglomeration area, or whatever those Statscan terms are?

Ms Alboim: Census metropolitan areas, yes, correct.

Mr Murphy: Just one sort of initial question and then the follow-up: As I understand it, the way it works the definition of "racial minority" would mean that an employer would look at the collection of all visible minority groups together as one category?

Ms Alboim: In theory.

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Mr Murphy: In theory, right. So it would be a black, Chinese, Vietnamese, whatever is identified. Do the census data break down in a way that makes this workable so that you can provide an employer with, I assume -- is Metropolitan Toronto one of the -- so you could say that there are 3 million people in Metropolitan Toronto and 267,310 are visible minority groups in this sense? You're nodding; that means yes.

Ms Alboim: Yes. The Statscan data are available and will get better as a result of the most recent census -- that is, more accurate than the old census was in this part because of the refinement of the questions.

Mr Murphy: And is that broken down by occupational group in the same way that this breaks down occupational groups?

Ms Alboim: Yes. Whatever we have put in here is absolutely complementary with the data that exist through Statscan so people will not be using one set of data and another set of data that don't --

Mr Murphy: I wonder if I can ask what information you have from Statscan, for my case, Metropolitan Toronto, but that breakdown. Can you supply us, as the committee, with that information? Would that be possible?

Ms Alboim: With --

Mr Murphy: The Statscan breakdown --

Ms Alboim: By designated group?

Mr Murphy: Yes, by designated group according to occupational group.

Ms Alboim: By occupational group, no, and for the following reason: We are transferring over from what was SOC to NOC; SOC was standard occupational code and NOC is national occupational code. Statscan is making the transition. We are basing this on the new information, which is the national occupational code, so that employers will not have to do a transfer over and will have available the data that Statscan is now going to be providing that data in. So it is not yet available in NOC. It will available by the time the legislation is --

Mr Murphy: Is the old data available under the SOC?

Ms Alboim: The SOC data should be available.

Mr Murphy: Could I at least have that?

Ms Alboim: Sure.

Mr Murphy: Thank you.

Mrs Witmer: One of the concerns that's been expressed by many of the individuals and groups concerning employment equity is the fact that the bill is silent on many of the key issues and much of the content, the real meat, is contained within the regulations. There's some concern that some changes to the regulations could be made through the back door, by cabinet, and not by full discussion by the people in the province of Ontario.

I guess one of the areas of concern is the area of numerical goals. As I indicated earlier, there's a concern about quotas. Whether or not the minister agrees, there is the perception that there will be quotas, that quotas will be imposed by the government on the employer community.

The draft regulations, in some ways, have attempted to clarify that situation, but I guess I'm wondering if there has been any serious consideration given to taking a look at the regulations -- it's in sections 23, 24 and 25 -- and taking those sections that refer to numerical goals from the regulations and putting them into the bill while at the same time removing subsection 50(2) from the bill, because if you take a look at that subsection, it does allow the imposition of quotas by the commission.

Ms Alboim: First of all, I'm not sure that subsection 50(2) allows for the imposition of quotas. It talks about percentages, not quotas, and there are some --

Mrs Witmer: Percentages and quotas, there's not a lot of difference.

Ms Alboim: There is a difference even in subsection 50(2) in what you're referring to, but I won't get into that.

There has been discussion in a number of quarters from a number of stakeholders about the relative merit of moving some of the things from regs into the legislation or not. The government is aware of the concerns of the number of different groups on some of those aspects and whether they should be moved into legislation or not.

Several things, if I could just -- no decision has been made, obviously, on that. I think the government is interested to hear through the committee hearings more about that. I think that although the committee hearings are really to talk more about the legislation than regulations, I would expect that some of the presenters will address some of their comments to the draft regulations as well, and that will be helpful for the government to hear. The consultation process on the regulations is happening simultaneously but has a deadline date of the end of October for comments on the regulations, so I think the government would like to hear more about the regulations and concerns people have or suggestions they have before making any definitive decision.

Mrs Witmer: Yes, and I guess that is another one of the reasons why I strongly believe the clause-by-clause analysis of the bill should be postponed, because the time line for the discussion around the regulations is still ongoing, and I hear you say that there might be some willingness on the part of the government to consider shifting some of the regulations to the bill.

Ms Alboim: Again, this is not really a technical question. This is more a question that could be addressed to my minister or to members of the committee rather than to me.

Mrs Witmer: That's right, but I know many of the presenters are going to be certainly raising those issues.

Mr Tilson: The last few did.

Mrs Witmer: What about the issue of confidentiality? It's included here, and there's a lot of concern that the confidentiality of the individual, and also the overall business, is not adequately protected. Are there any suggestions as to how that might be strengthened?

Ms Alboim: Again, in the draft reg there is special provision made for if in --

Mrs Witmer: In 14, where --

Ms Alboim: If there are any cases where there are numbers under five that it be rolled up so that people are not easily identifiable. If they are the only aboriginal lathe operator in a particular organization, it wouldn't say "one" in that particular report, so that people's self-identification again could be protected and retained confidentially. That's in the draft reg at this point in time.

There are provisions in the act now that make it an offence to release any information about individuals. There could be -- well, I think it's fairly clear now, and it is not only not allowable but it is an offence with up to a $50,000 fine if personal information is released, and only that information that is necessary to share with the bargaining agent for joint responsibility is information that is made available to them. It's not as if everything is on the table.

Mrs Witmer: Who deems it to be necessary?

Ms Alboim: There is a reg-making authority in the legislation to actually prescribe what information is provided to the bargaining agent for them to take part in the exercise. There is no draft reg right now. That is something that we are again expecting to hear through the consultation process, whether we should actually identify each element of information that would be made available or whether that should be developed over time as a result of some experience rather than putting it into a draft reg right now. In the absence of the draft reg that prescribes that, it would be up to the parties to sit down and discuss what information is necessary --

Mrs Witmer: However, there might not be agreement on what is necessary.

Ms Alboim: And if there is no agreement, then the provision is to go to the tribunal to seek a ruling as to what information is required.

Mrs Witmer: And it's exactly that type of issue that does create some uncertainty. At a time when we're experiencing a lot of hardship in this province, this bill comes along and further is worrisome to people, whether it's employees or employers, because there's another reason for people to get into some sort of divisive nature, and that's really unfortunate.

I hope the government will seriously give some consideration to the protection of confidentiality, because I think it's going to be very important. I think it's going to be one of the areas where people will refuse to self-identify simply because they have conditions, perhaps disabilities, that they don't wish others to be aware of. I don't think that at the present time they feel adequately protected by the legislation, so that's certainly a reason for concern.

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Mr Tilson: Whether you're a firm of 50 to 100 or of 100 to 500, I believe it is, the bill says those firms must do a number of things: They must survey their work, they must review their practices, they must prepare an employment equity plan, they've got to file a certificate -- I'm obviously oversimplifying, but they've got to do a whole slew of things, some within three years and some within two years, depending on how big they are. Do you have any reports of any sort indicating what the government estimates it will cost firms of this size to do all of these things?

Ms Alboim: There are some reports that have been done about other initiatives. Until we know exactly what is going to be required by the legislation and regulations after the committee process, we don't have the specific costs, because it will vary from employer to employer, depending on what the circumstances are in that particular work site, what human resources they have already, what practices --

Mr Tilson: What if they don't have any? I guess that's the problem. If we're trying to debate individual sections or individual policies or developments, surely you, as the deputy, must be able to give us some estimate on something with respect to what it's going to cost these various firms. I just oversimplified a whole group of things that have to be done. What sort of paper work is that going to require? What sort of bodies will that require? There's a whole slew of questions that need to be asked and answered, I believe, before this bill can be passed, or before this committee can report back to the House. I can't believe that the government, and your office specifically as the deputy, doesn't have some reports that you have commissioned giving estimates about costs, whether it's a small business or a large business, or whether it's different types of businesses. You must have some reports.

Ms Alboim: Let me state it a different way. There are some estimates based on the federal program; there are some estimates based on voluntary programs. It's very hard to generalize from those experiences into this particular exercise. More importantly, the expectation is that the supports that will be provided by the Employment Equity Commissioner's office in terms of manuals, guidelines, software packages, for example, for human resource practitioners, those kinds of things, will very significantly reduce the costs of administration to an individual employer.

Mr Tilson: To say that you must have some facts -- I mean, I assume you've looked at other jurisdictions that have similar legislation, or is this the first ever? It can't be the first ever.

Ms Alboim: The federal government has an Employment Equity Act that is very limited in its application. They have a contractors' program which is a little bit more extensive than their legislated program. There is no other jurisdiction within Canada that has a comparable initiative to the one we have here.

Mr Tilson: What about North America, the United States?

Ms Alboim: The United States has a very different approach, and the costing in the States would not be comparable to what we are proposing here.

Mr Tilson: Can you give the members of this committee whatever you have? Obviously, all of those things that I summarized that are going to have to be done within two years or within three years is a substantial amount of work that these firms are going to have to do or they can be fined up to $50,000, I think the bill says. To do that, you must have some background facts, and I believe this committee should see those background facts before we proceed. Are you able to give this committee that information?

Ms Alboim: We will have to go back to the office and see what is available and provide you with the best we can.

Mr Tilson: When can you provide us with that information, whatever you have?

Interjection: In the morning.

Mr Tilson: Tomorrow. It's right on the corner of your desk?

Ms Alboim: Well, it's probably not tomorrow, but we will do it as expeditiously as we can.

Mr Tilson: We've got a certain period of time; I just hope we'll have it.

I have a further question. My understanding of the law is that you can't use race, colour, ancestry, in decisions with respect to hiring or promotion; that's the law. An employer today, under the current law, must concern itself, therefore, with one question: Is the candidate the most qualified or suitable person for the position? That's the current law. My question to you is, why is that existing law inadequate?

Ms Alboim: It's not the current law. The current law under the Human Rights Code allows for special programs to be put into place specifically to redress disadvantage, and it is allowable now within the jurisdiction of the Ontario Human Rights Code to develop particular initiatives that allow for questions of race, for example, to in fact be paramount in decisions taken. That is what the current law is.

What employment equity does is build on those provisions for special programs within the Ontario Human Rights Code and allow for a systemic approach to be undertaken to redress past discrimination. So it is not all right to ask someone if they are a racial minority if you plan to use that information against them. It is fine to ask someone if they are a racial minority if you plan to use that information to redress discrimination. That is what the current law under the Human Rights Code says.

Mr Tilson: It's been said over and over that in the current law we already have -- I say "we" -- the people of Ontario already have a substantial amount of rights to preclude discrimination. What you're saying is that they don't and that this law is going to preclude discrimination.

Ms Alboim: No. The Ontario Human Rights Code by and large deals with individual complaints and individual circumstances. What the Employment Equity Act is really trying to do is deal with systemic discrimination and issues that pertain to groups of people and not just individuals. It goes further than the Human Rights Code, to redress disadvantage experienced by classes or groups of people rather than just allow for each individual to complain individually to get an individual remedy. That's the intent of this act.

Mr Tilson: All right. I don't agree with what you've just said, but you've done your job as the deputy and I will proceed to another question. The question that interests me --

The Chair: One final question.

Mr Tilson: My final question, according to the Chair, at least, has to do with the fact that there are obviously a number of jobs now that are predominantly performed by -- we'll take women as an example, whether it be nurses or elementary school teachers. There is no provision in this legislation to assist the male gender as a group to get into that type of thing.

There is the other issue, of course, that there may be particular occupations which, whether a particular gender, a particular race or particular disabled people, they may not want to go there, yet the big government is saying, "Thou shalt have certain numbers of people in those businesses, because if you don't, you're going to get fined up to x dollars."

I know I shouldn't phrase it that way, because it's a political question and I don't mean it to be. But there is no question that there are certain jobs today which are predominantly performed by women -- I'll take that as an example because I can't think of any others at the moment, but those are two I can think of -- and there are certainly jobs in terms of which women may not want to be in those particular jobs. Yet as I understand these vague plans, and they are vague, they will insist that an employer perhaps make that a little more equal even though people may not want to make it equal.

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Ms Alboim: There are no requirements in the bill for employers to capture individuals and insist that they work in jobs they have no interest in working at. In terms of the numerical goals and timetables and the way they are established, every three years the employer and the bargaining agent, if it's a unionized workplace, will have to do several things: (1) look at the look at the level of underrepresentation in a particular occupational group of particular designated groups and (2) look at the availability of people with the necessary skills and qualifications to enter into those occupational groups --

Mr Tilson: If we had more time, I'd challenge you on that, because that's the whole problem with this bill.

Ms Alboim: -- and if they do not have people who are available either inside their workplace or outside their workplace who have the qualifications and who are capable of doing those jobs, there is absolutely no obligation to hire them.

Mr Tilson: I can't agree with you, but, Mr Chairman, you've given me my last question, so thank you.

The Chair: Very well. Mr Fletcher.

Mr Fletcher: Just a couple of quick questions, and I'll try to make them simple: Does Bill 79 supersede, does it conflict with, does it wipe out the Ontario Human Rights Commission legislation at all? Are there big conflicts there?

Ms Alboim: No. There is one section in the act that does talk about what happens when a complaint goes both ways simultaneously and what the order or the processing should be. The Human Rights Code is the primary law of the land. The one place in this act that allows for a modification to that is that when there is an employment equity plan that is dealing with a particular issue in a proactive way, the Employment Equity Commission can make a ruling that that is being addressed in a reasonable way and that therefore the Human Rights Commission should not address itself to that particular issue; otherwise, there is absolute complementarity.

Mr Fletcher: I'm an employer, and for some reason someone's complaining to the commission, and the commission makes its ruling and then we go to the tribunal and the tribunal makes its ruling. If I disagree with that as an employer, do I have further recourse? Suppose I get fined the $50,000. Do I have further recourse? Do I have through go to the courts or can I go somewhere else?

Ms Hewson: The decision of the Employment Equity Tribunal is final, and it would only be in an area that would be subject to judicial review that an employer would, I would expect, have a well-founded case for overturning such a decision. I think the answer is that the commission could make an order, that the employer has every right to take that order to the tribunal, where there would be a full hearing of the issue, and after that it would be only if there were an error or an error of jurisdiction that that case would likely be successfully judicially reviewed.

Ms Alboim: But the tribunal can overturn an order of the commission, so the first level is the commission order. If the employer is dissatisfied with that, the employer can take it to the tribunal. The tribunal has a hearing, and it can then overturn the decision of the commission or support it or vary it.

Mr Fletcher: As far as the legislation is concerned, we're going to be hearing, over the course of the next couple of weeks, of certain cases. I believe there was one brought up about day care being supplied, and that that would be a barrier. We can always bring up an individual case that could be in the grey area somewhere.

I'm piggybacking on a question that came from across the floor. Would that mean I could, if I wanted to, go through the process of going to the commission and the tribunal to find out, if my case were of that gender, where it was just in that border area, as an employee?

Ms Alboim: As an employee or as an employer?

Mr Fletcher: As an employee.

Ms Alboim: As I went through the roles and responsibilities and the powers and the authorities of the commission, the commission is primarily a facilitative, educative, helpful kind of organization to provide the kind of support and assistance necessary to the parties involved as to how to implement employment equity and what would meet the criteria and what would not, providing guidelines, providing manuals and supports etc. Yes, either an employee or an employer could go to the commission and say, "We're not sure how to respond to this particular barrier. Do you have any suggestions about positive measures or supportive measures or things that might be helpful to respond that would meet the spirit of the law?" and to get some kind of assistance on that.

If there was a particular complaint or particular concern by an employee who feels the plan did not address the needs appropriately, the employee goes to the tribunal with that, rather than to the commission.

Mr Fletcher: Just piggybacking on the idea of men not being included in the legislation and to say what my colleague Jenny said, I guess it's time maybe we did allow men to be in there so we could fight for the 49%, that women are getting --

Ms Alboim: First of all, racial minority men --

Ms Carter: No, I said 49% because that's how many there are in the population.

Mr Fletcher: Yes.

Ms Alboim: I think it's important to say that racial minority men, men with disabilities and aboriginal men are very much a part of this, and white men, I would argue, will benefit from good employment equity practices as well.

Mr Fletcher: That's one of the big fears right now. Do I have just a little more time?

The Chair: There is time until 6.

Mr Fletcher: You mean I've got till 6 o'clock?

That is one of the areas where I hear a lot of concern and it's one of the myths coming out of the legislation, that the white male population is going to suffer from this legislation. I'm still trying to find out where, why and how and I'm just wondering if -- technically, is there anything in the legislation that is going to be damaging to white males?

Ms Alboim: There is nothing in the legislation that would create a situation where white men are dismissed, for example, from their current jobs. There is nothing to say that white men would not be eligible for training opportunities or promotional opportunities. There is nothing here that says any of that.

In fact, one could say that an employer who has a good employment equity environment will create opportunities for all employees within the workplace and all those seeking to work within the workplace because it means there are good human resources practices in place. Whether that is training, whether that is support measures, whether that is flex time -- whatever it is -- it's an organization that's responsive to the needs of employees and the current labour force.

Mr Fletcher: You touch on an interesting point when you talk about training and everything else. I remember when I was a trustee with the school board, we were trying to set up an English-in-the-workplace program through the school board with many industries, and when it first started to be set up, there was some opposition to it. The reason was that employees from different ethnic backgrounds who weren't familiar with the English language weren't receiving the amount of training that other people were receiving, because of the language barrier, safety -- they couldn't read safety signs -- and the feedback we started getting from some of the employers was, "Hey, this is a pretty good program, because it's helped us design our training programs for our people and we're glad to implement it."

I can see with employment equity, when the reporting of the stats is in as far as the makeup of the workforce is concerned, that it can go a long way in how an employer would develop a training strategy and it would also go right down the line through all the supervisors, their hiring practices and everything else. I can see the benefits of the employment equity legislation as far as that is concerned.

Was this part of the discussion that went on with business groups when the consultation was going on, as far as how this could help in the workplace with training and the promotion of people?

Ms Alboim: Yes. The experience of some of the federal contractors, for example, and the experience of those who have done employment equity on a voluntary basis, the ones with whom we have had discussions, indicates that it has really helped in terms of their human resources management, generally speaking, across the board. There are people who see it as just providing an environment that is a healthier environment in their workplace, providing for them to find people in the labour force they never knew existed before to become employees in their organization. The impact has generally been positive.

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Mr Fletcher: Another part in the legislation -- I don't have it open to the page; I think it's in section 14 -- talks about the employee groups being together, getting together. Let me see if I can find it. Okay, yes, it's 14(5), "If the employer and a bargaining agent decide to do anything that conflicts with a collective agreement to which they are the parties, they shall amend the collective agreement to resolve the conflict." Under whose determination is it that the collective agreement is in conflict? Is it the committee? Is it the union people? Is it the management people?

Ms Alboim: There are two possibilities in this case. If the bargaining agent and the employer agree, in the development of their employment equity plan, that this is what they want to do and they agree that there is a conflict between that and an existing condition of their collective agreement, they then just go ahead and do the amendment necessary to the collective agreement to bring it in line with the employment equity plan.

If there is no agreement between the two parties that there is a conflict -- they have agreed on the employment equity plan but they don't agree that this in fact is contradictory or conflicting with what is in the collective agreement -- then they would go to the tribunal for a determination. But if they agree, it's self-managed and they deal with it on their own.

The Chair: Any other questions from the government? We still have some more time, so I'd like to ask the opposition members whether they'd like to ask some other questions. M. Murphy?

Mr Murphy: Merci bien; always glad to ask more questions. I have some questions related to the commission and the tribunal. One of them is, how is the membership -- the employees of the commission -- how are you going to determine who gets picked? Is that going to be within the power of whoever's appointed commissioner under the section appointing the commissioner? Does that sole person pick the rest or are the minister and your office going to pick the rest? Do you know how that's going to work?

Ms Alboim: For the actual employees?

Mr Murphy: Yes.

Ms Alboim: All that's determined in the legislation is that they are employees to be appointed under the Public Service Act. Under the Public Service Act, there are certain requirements in terms of how civil service appointments are made. Right now there are lots of rules in terms of how appointments are made, given the number of surplus employees we have within the civil service etc. So the provisions that exist for the hiring of civil servants would be in place.

Mr Murphy: I guess what I'm getting at is that the commissioners have a fair degree of initial power under the act, because they are the ones who are reviewing the plans to make sure they are going to be reasonably in compliance. They're the people who are supposed to do the educating, develop the policies, a whole range of things. I'm just wondering what kinds of qualifications are being looked at for these individuals.

Ms Alboim: I think it's premature now to talk about that. We already have some staff who have been working. Although the commission isn't yet established, we do have a commissioner and we do have staff in the office of the Employment Equity Commissioner who have been working very hard on the consultation process and the preparation for the implementation of the commission. So there is a nucleus of people who are already working on these initiatives, but we need to do this in a step-by-step kind of way.

Mr Murphy: I'm going to jump around a bit. We're up to section 42. The tribunal is empowered to consider commission policy directives in making decisions, and I'm wondering whether any legal opinions were obtained regarding the role of the commission in terms of both its -- it has an initial review, almost quasi-adjudicative function at the first level. It has a sort of legislative function, almost, by virtue of its policy directives. It can be a party before the tribunal and hence would have a quasi-prosecutorial role. There's a real potential for conflict within the commission among its various roles. I'm wondering whether you had any legal opinions to look at how it was going to deal with that internal conflict as to its many roles.

Ms Alboim: If I can give you an example of the Pay Equity Commission, the Pay Equity Commission has a variety of roles and they have organized themselves so there is a differentiation made between the compliance group and the educative kind of group. There is a differentiation, a separation of responsibilities, but it is within the overall mandate of the commission, and a similar kind of structure would be one way to respond to that.

Do we have a legal opinion? If that's your question, no, we do not have a legal opinion, but we have other examples of like commissions that have a variety of different roles and how they have dealt with this issue.

Mr Murphy: I can't remember the provision, but somewhere in here there's a provision that allows any person to make an application, I believe, to the tribunal to complain about a plan. I'm wondering why it was drafted as broadly as that, to make it any person as opposed to an aggrieved person in a trade union or the employer.

Ms Alboim: This was also to allow for the possibility of third parties to make their concerns known to the tribunal.

Mr Murphy: Okay. What kinds of third parties would that be?

Ms Alboim: It could be, for example, ARCH, let's say: the Advocacy Resource Centre for the Handicapped. They might be monitoring the implementation of employment equity and the impact on people with disabilities, and they may have some legitimate concerns that they want to take forward to the tribunal.

Mr Murphy: I've looked through and I haven't been able to find the power allocated to the tribunal to essentially -- or the commission, in a sense. I'm thinking about the Human Rights Commission, where you go through the complaint and there's the initial process where the investigators can say, "Look, this is without merit. We won't bother appointing a tribunal." That is to a certain extent skipped here because a person can go directly to the tribunal by way of application.

I'm not sure I see a specific power allocated either to the commission or the tribunal, other than in the exceptional circumstance of that human rights to employment equity back to human rights hockey game, for the commission or the tribunal to say "No, we don't need to consider this," in a preemptory manner without a full hearing.

Ms Hewson: The commission, under section 22, has the power to conduct an audit, but there is no automatic right to have a complaint carried forward by the commission as there is, for example, under the Human Rights Code. I would say that for your first question regarding the commission, they very much have the power to decide what to go forward with and what not to go forward with, because they make the decision where they're going to expend the resources to audit.

In terms of your second question, or the same question as applied to the tribunal, I think it is true there is no limitation on the right under section 26 to apply to the tribunal. However, the grounds upon which a person may apply to the tribunal are as limited by section 26.

Ms Alboim: And because it would be an individual taking something to a tribunal without having the commission have carriage for that and therefore the individual would have to pay the costs, the expectation is that there won't be very many frivolous complaints going before the tribunal, given the hearing time etc that would be involved.

Mr Murphy: I leave some time for my friend, Mr Tilson.

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Mr Tilson: Just following on that point, this bill creates the Employment Equity Commission and it creates the Employment Equity Tribunal. When this bill was first introduced in June 1992, the minister indicated that $4 million was allocated for the commission in 1992-93. Now the 1993-94 estimates tell us that the budget for the Employment Equity Commission will be $6 million. There has been some question in the business community about policies and procedures of employers would be better adjudicated by a body that's already doing that sort of thing right now, which is the Ontario Human Rights Commission.

My question to you is, realizing the cost, realizing the similarity in many respects -- you've already made comments that there are some differences -- realizing all that, why are we creating a new administrative agency, another adjudication body? Why can't the Ontario Human Rights Commission handle this sort of thing?

Interjection: Good question.

Interjection: Yes, excellent.

Ms Alboim: I'm not sure that's a technical question.

Mr Tilson: I'm sorry and, Mr Chairman, I quite agree there's a grey area between technical questions and political questions, but let's look at it, as to what these things are going to be doing, what the Employment Equity Commission is doing.

The Chair: Would the existing case load be an answer?

Mr Tilson: To me, they're doing essentially the same thing, and I think it's a reasonable question to ask you, as the deputy minister, for the rationale as to why we're now going to have another layer, another administrative agency and another adjudication body when the Ontario Human Rights Commission could do exactly the same thing.

Ms Alboim: The Ontario Human Rights Commission, as you know, has responsibility for areas of discrimination that go far beyond purely the area of employment, number one. Number two, they have responsibility primarily, although not exclusively, for individual complaints as opposed to the kind of proactive planning approach that we are looking for with the Employment Equity Act.

The role of the Employment Equity Commission, particularly in terms of providing expert advice and support to assist the workplace parties in terms of the development of plans, measures that have to be put into place, would indicate that you need a particular focus on this kind of initiative, rather than for it to be part of a whole range of other areas.

It is a fairly special focus in labour market issues. It is a particular focus on systemic issues, rather than individual issues, and it is particular to these designated groups as well. Whether or not -- I think that the fact of the matter is too just at the current time we have a Human Rights Commission that is addressing a series of very, very difficult issues and we have the need to get this up and going and running quickly and effectively.

Mr Tilson: I guess I understand that and so you know what my next question is going to be and that is, what will be the staffing of the Employment Equity Commission? How many people will be required?

Ms Alboim: There are still some models being developed in terms of whether the organization is a decentralized organization or a centralized organization, for example. Options are being proposed about the organizational structure of the commission and we do not have --

Mr Tilson: So you don't know.

Ms Alboim: -- final approval at this point in time as to the structure and therefore the staffing requirements.

Mr Tilson: You don't have approval, but can you tell us what's --

The Chair: Mr Tilson, just to wrap up, I want to give Mr Fletcher an opportunity to ask a question as well, to come back to him. Please complete your question quickly.

Mr Tilson: I thought he was finished.

The Chair: But I give you an opportunity to ask a question, so please complete the thought, and we'll go back to Mr Fletcher for one final question.

Mr Tilson: Can you tell us what the ministry's recommendations are as to the size of the Employment Equity Commission?

Ms Alboim: The options are still being developed, and there is no ministerial recommendation at this point in time.

Mr Fletcher: It's a pleasure to be here again. On some of the things that you're saying, I want to dispel one of the myths that is going around here. When this legislation was being done, was being formulated, we went out around the province and consulted with a number of groups, and that's how the legislation came about. Some of the groups are saying yes, some are saying no; it's, I'd say, 50-50 how the groups are going.

When I listen to the Conservatives and the Liberals also say that they want more time for discussion on this, more time for clause-by-clause, they didn't want to go around the province, they didn't want to travel around the province to get everyone's view, and there was an editorial from Sudbury that commented on this committee not going to the north where people are going to be affected by it, and I feel very sorry that we're not going to the north where many people are going to be affected. I blame the opposition parties for that.

They also agreed that what we needed was three weeks of committee hearings and a week for clause-by-clause, and now they want to change that around, which is sad because that means we're going to take more time and more time. I hear Mr Tilson talk about when it was first introduced it cost $3 million and now it's $6 million. If we had done it then, it would have cost $3 million, not $6 million. The way you've held things up, that's why we're where we are today.

When you were going around the province and you were discussing with everyone, you met with aboriginals, with people with disabilities, with women and minority groups. At any time, did any one of these groups say, "We don't need this legislation; we're fine"? At any time did that come out? Even from the business community, did they ever come out and say, "We're doing fine; we don't need this"? Was that a response that ever came out?

Mr Murphy: Think about the answer first.

Ms Alboim: The designated groups which participated in the consultation process were clearly in favour of having legislation, and strong legislation --

Mr Fletcher: Perhaps even a little stronger than where we are now.

Ms Alboim: I think yes.

Mr Fletcher: I think yes also. That's very good. Thank you for being here.

The Chair: Ms Alboim, Ms Hewson, thank you for the briefing and thank you for your participation with this committee.

Mr Curling: Before you dismiss the deputy, I'm not going to ask you a question at all, Mr Chair, but you see the sort of activity that happened here after her explanation. I think it was an excellent way you responded. I think we haven't really got deep into it. My partner here, my colleague, had to rein in a bit because there's more. My question, I'm wondering if it's possible to have the deputy back, because it is so important. As you know, as soon as we have a presentation here, the questions that we would like to ask will not be asked of those presenting. We would love to have the deputy going through some of the explanations like that.

The Chair: We have a staff member here; I suspect it will be the staff member who will be here throughout the hearings. Is that not correct, Madam Deputy?

Ms Alboim: We will have staff present throughout the whole.

The Chair: So there will be somebody here who will be listening to these questions and possibly participating in this.

Mr Curling: Understanding that, we know that 30 minutes or so will be given to presenters. We didn't want really to encroach upon their time in answering technical details.

Interjections.

The Chair: Please, please.

Mr Curling: It doesn't seem to me that -- they're not interested at all. I thought the parliamentary assistant was himself asking some good questions. I thought he knew the answers before, being the parliamentary assistant, but I just wanted to consider the fact that we don't want to encroach upon the time of the presenters, if there is such designated time that could be given in order that we could have an in-depth briefing again and questions like this.

The Chair: If it's necessary, we can in subcommittee consider the questions you've raised, but otherwise we will have staff here that will be listening and participating when necessary if necessary.

Thank you for coming. We'll start punctually tomorrow at 10.

The committee adjourned at 1800.