EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
CONTENTS
Monday 29 November 1993
Employment Equity Act, 1993, Bill 79, Ms Ziemba \ Loi de 1993 sur l'équité en matière d'emploi, projet de loi 79, Mme Ziemba
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
*Akande, Zanana L. (St Andrew-St Patrick ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
Curling, Alvin (Scarborough North/-Nord L)
Duignan, Noel (Halton North/-Nord ND)
*Harnick, Charles (Willowdale PC)
*Malkowski, Gary (York East/-Est ND)
*Mills, Gordon (Durham East/-Est ND)
*Murphy, Tim (St George-St David L)
Tilson, David (Dufferin-Peel PC)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Carter, Jenny (Peterborough ND) for Ms Harrington
Fletcher, Derek (Guelph ND) for Mr Duignan
Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Tilson
Also taking part / Autres participants et participantes:
Beall, Kathleen, legal counsel, Ministry of Labour
Ministry of Citizenship:
Ziemba, Hon Elaine, minister
Alboim, Naomi, deputy minister
Bromm, Scott, policy analyst
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Joyal, Lisa, legislative counsel
The committee met at 1550 in room 228.
EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
Consideration of Bill 79, An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women / Projet de loi 79, 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): I'd like to call this meeting to order. We're on section 23. There are no amendments to the section. Any questions, comments?
Mr Charles Harnick (Willowdale): Can we officially begin with no one here from the Liberal Party?
The Chair: We can officially do that. We've waited a short time for them to come.
Mr Harnick: It was my understanding that Mr Murphy would be arriving.
The Chair: I understand that. We have called their office and we assume he'll be here shortly. Here he is now.
We're on section 23 and there are no amendments. Any discussion on section 23, Mr Murphy? I'll give you an opportunity to look at section 23 to see whether you want to comment on it.
Mr Tim Murphy (St George-St David): It's funny, Mr Chair, but I feel this sword hanging over my neck today, for some reason. I can't figure out why that would be. Maybe it's that motion in the House tomorrow.
The Chair: It will go away.
Mr Murphy: It'll go away. Exactly.
The Chair: Mr Murphy, you'll have to go to the bill. There are no amendments; therefore, you will need to refer to the bill.
I think we're ready for the vote. All in favour of section 23? Opposed? That carries.
Sections 24 to 51, PC: Shall we stand it down until Mrs Witmer comes?
Mr Harnick: No, I may as well deal with it. Would you like me to read that?
The Chair: Yes, please.
Mr Harnick: I move that sections 24 to 51 of the bill be amended by striking out "Employment Equity Tribunal" and "tribunal" wherever they occur and substituting in each case "Ontario Human Rights Commission."
The Chair: Any discussion, Mr Harnick?
Mr Harnick: Essentially, what we will be doing by accepting this amendment is ensuring that any cases of dispute are heard by the Ontario Human Rights Commission, whereas other disputes dealing with education, administration and auditing would be directed to the Employment Equity Commission. Effectively, that's the gist of the amendment.
The Ontario Human Rights Commission already exists to hear complaints about discrimination, and it's our opinion that this is a worthwhile amendment because we are avoiding duplication with respect to hearing complaints about discrimination. We already have a tribunal that does that. We should remain consistent so that we're not duplicating issues that are then being heard in two different tribunals with the same subject matter.
Mr Murphy: Would whoever cares to answer, the parliamentary assistant or the deputy, explain to me the working, as they see it now, of the changed consequential amendments to the Human Rights Code? We have a not-dissimilar motion subsequently, although our opinion is not to add all the work to the Human Rights Commission as it stands now but to create an overarching body. This is following up on the Mary Cornish report on the equality of rights tribunal. Could I just get someone to explain how they envisage complaints working between the Human Rights Commission and the Employment Equity Commission under the new provisions.
Ms Kathleen Beall: Under the new amendments to section 51, would what happen would be that if a person had a complaint arising under the Human Rights Code, in particular in the workplace arising from the employment situation, they would go to the Human Rights Commission, as they presently do under the Human Rights Code, and that would not change. The provision that had been in the bill, or presently is in the bill until such time as it's amended by this committee, was that the commission would have had to look to see whether it was a matter which had been addressed in the employment equity plan and, in that case, have to send it across to the Employment Equity Tribunal to deal with.
That, under the motion that has been filed with this committee, would be removed and replaced by the motion which would merely say that if you have a complaint which arises under the Human Rights Code, you would go to the Human Rights Commission and it would proceed in the normal course before the Human Rights Commission.
The only small changes to that would be a recognition that the cost to the employer of implementing an employment equity plan could be taken into account by the Human Rights Commission in assessing undue hardship in the three sections under the Human Rights Code where they'd make that economic assessment. If you have an approved plan, an employment equity plan which has been approved by the Employment Equity Commission or the Employment Equity Tribunal, the cost of implementing that plan would be required to be taken into account in the assessment of undue hardship under the plan.
Two other matters are referred to in that section: One is that the positive measures and numerical goals set out in an employment equity plan in and of themselves cannot form the basis for a complaint on the grounds that you're not included in the list of persons to be covered by that numerical goal or positive measure.
To make it clear that there is a distinction between (a) the jurisdiction of the Human Rights Commission and its retaining full jurisdiction over matters which come to it under the Human Rights Code and (b) the jurisdiction of the Employment Equity Commission, you would have that the Human Rights Commission cannot issue an order which amends an employment equity plan. However, it can issue an order which has requirements on an employer in addition to the requirements in an employment equity plan, which of course the Human Rights Commission would retain jurisdiction over for the purposes of enforcement.
1600
Mr Murphy: Well, I'm going to have to claim that it's my illness that's causing me to be a bit slow today.
Let me just follow up on that. I disagree in part with the Conservative motion.
Mr Harnick: No.
Mr Murphy: It's true -- sorry, Charles -- only to the extent that it dumps it into the Ontario Human Rights Commission. As it stands now, the notion of a division between an individual complaints process and a systemic complaints process has some sense. That's the theory behind an employment equity bill, that there's a distinction between individual and systemic discrimination, and there's a logic to that.
I have a real problem. That's why I think some kind of model like the one that Mary Cornish recommends is better, where you have a central body that has two panels and it can decide that you have either an individual complaint panel or a systemic panel. That's why I think a larger body is appropriate.
I'm just looking at what you've explained to me, I'm sure very well. I'm wondering if I could ask you a question regarding the consequential amendment subsection 24.1(2). Am I right that the board of inquiry need only consider the employment equity plan if (a) or (b) has occurred on or before the complaint is made? In other words, if a complaint is made on day one and the plan isn't approved until day 30, the board of inquiry need not consider it. Or am I missing something?
Ms Beall: The board of inquiry is not required to consider it, but it still may consider it if it chooses to do so.
Mr Murphy: The "may" comes from subsection (1), is that right?
Ms Beall: Yes.
Mr Murphy: I'm a little confused by that. I have every expectation that there's going to be a real backlog early on as people try to figure out how to comply, and the commission is going to take time to get up and running. I can see the potential for some early complaints being lodged as test complaints of how far it's going to go. Yet at that point in time it could very well be that the commission has not even had the time to determine the plans, and because of this provision, you're not mandating that the board of inquiry or court or whatever consider the cost, despite the fact that even if it were approved 30 days earlier, it would be mandated to consider that cost. It's only a permissive section. Am I right in that interpretation?
Ms Naomi Alboim: Yes, it is a permissive clause. I think the way it would play itself out, though, is that the BOI would certainly want to look at all the evidence and all the facts before it, and one of the things it would look at is, is there a plan? Is the plan in the process of being audited or monitored or looked at by the Employment Equity Commission or by the Employment Equity Tribunal? We clearly expect there to be a memorandum of understanding worked out between the Employment Equity Commission, the Human Rights Commission, the BOI and the Employment Equity Tribunal to clearly determine the procedures necessary. The word "may" is in there if the plan has not yet been approved. If it is, in your example, 20 days away from being approved, that would certainly be part of the evidence it would consider before making its determination.
Mr Murphy: You expect a memorandum of understanding and to be working it out. My view is that if you set it up as a unified body in the first place, you'd have a more efficient administration. Our process of going through the clause-by-clause, the series of different amendments we've seen, show the difficulty there is going to be in working through this. It's not a simple bill, by any stretch of the imagination.
I just think we're going to transfer a lot of money that would be better used on employment equity to lawyers. As we well know, lawyers can spend a lot of time fighting about small things, with sometimes successful results and sometimes unsuccessful results, but in a way, more often than not, unfortunately, that can have nothing to do with the objective you're trying to reach.
That's my concern, frankly, about the way you're setting it up, that you're going to have a system where you're going to have people bouncing back and forth and testing the limits on one side and testing it on the other and we're playing around with the jurisdictional issue. If you set it up up front with a body that has control over working this out, both over the Human Rights Commission and the Employment Equity Commission, as panels even of the same body, it would be more successful and it would be less costly to the participants, both the members of the designated groups and the employers, who would say, "I'd rather spend $2,000 accommodating someone in the workforce than paying a lawyer." As you well know, it doesn't take long to pay $2,000 to a lawyer. Probably drafting the response to the first complaint would use up about $2,000, especially if you use someone like David's old firm.
Mr David Winninger (London South): Funny, I was thinking the same thing about you.
Mr Murphy: I suspect they're probably pretty similar.
So I guess the bottom line to Charles is that I support the intent. I'm not sure the Human Rights Commission is the locale for keeping it, because it to date hasn't exactly been characterized by speedy resolutions of disputes either. And we need to be able to separate sometimes the individual discrimination from the systemic discrimination, because I think there are different intents and different purposes. But I think we need to have an administrative structure that makes it workable. Those are my comments.
The Chair: I think we're ready for the vote on this.
All in favour of Mr Harnick's motion? Opposed? That is defeated.
Moving on, 24 to 51, a Liberal motion. Mr Murphy?
Mr Murphy: I move that sections 24 to 51 of the bill be amended by striking out "Employment Equity Tribunal" and "tribunal" wherever they occur and substituting "Equality Rights Tribunal."
I think I have made what case I can for this motion in my comments on Mr Harnick's.
The Chair: Any further debate? Seeing none, we'll get to the vote.
All in favour of the motion? Opposed? It's defeated.
Subsection 24(1), paragraphs 3 and 5, government motion.
Mr Derek Fletcher (Guelph): I move that paragraphs 3 and 5 of subsection 24(1) of the bill be struck out and the following substituted:
"3. An employment equity plan does not comply with section 11 or 11.1....
"5. The employer has not consulted, in accordance with section 15, with the employer's employees who are not represented by a bargaining agent.
"5.1. The employer has not posted information in a workplace or made information or a copy of the employment equity plan available in a workplace in accordance with section 16."
This motion replaces the previous motion of subsection 24(1) and it introduces three technical amendments.
The change to paragraph 3 has two purposes. First, like the previous motion of this paragraph, it reflects the fact that employers will be permitted to develop several employment equity plans rather than one overall plan. Second, it also ensures that the commission can make an order for non-compliance with section 11.1. The commission can make orders if the employment equity plan's qualitative measures or numerical goals do not constitute reasonable progress towards the achievement of the employment equity principles as set out in section 2.
Paragraph 5 is the same as in the original motion. It reflects the fact that the consultation obligation set out in section 15 applies only to employees who are not represented by a bargaining agent. The commission's order-making powers will be amended to reflect this amendment.
Paragraph 5.1 is in recognition of the new requirements of section 16, requiring the posting of certificates and other prescribed information in the workplace and providing employees access to the plans. The commission will have the authority to issue orders for non-compliance with these requirements.
Mr Murphy: What is the section where the commission has the authority to say that a plan complies with part III?
Ms Beall: Section 24.
Mr Murphy: It is this section?
Interjection.
1610
Mr Murphy: I guess I might be missing it, but this really seems to deal with if the commission is of the view it doesn't comply. Is it just that if there's no complaint by the commission, it's deemed to comply? Is there some section that does that?
Mr Scott Bromm: Section 22 allows the commission to audit for compliance with 23, and in section 24 it provides for the order-making power in the event the audit finds non-compliance.
Mr Murphy: The reason I ask the question, and it comes back to this section, is because your consequential amendments to the Human Rights Code say either the tribunal says it complies or the commission says it complies, and there's no provision that actually provides the commission with authority to say it complies except in the negative sense that it doesn't.
Mr Bromm: Well, 22 isn't in the negative. It just says to determine whether or not the employer is in compliance with part III.
Mr Murphy: Exactly. What I don't see is any structure where you get a piece of paper that someone can file saying, "The commission says it's an approved plan."
Ms Beall: Having given the commission the authority to audit and the authority to determine whether or not someone is in compliance with the plan, it would be an administrative matter for the commission to put such a finding of compliance on a written piece of paper.
Mr Murphy: All right. Let me just follow this. You're saying you don't need a legislative provision that provides the commission with authority to say it complies?
Ms Beall: Yes, that's what I'm saying.
Mr Murphy: Well, I guess I'm sure I don't agree with you, but the reason I asked all that question is because I'm thinking about the circumstances enumerated in 24. Some of them relate to whether the plan complies and some of them relate to other things; for example, the posting of information you've added by 5.1, maintaining employment equity records etc.
I'm wondering if, absent a legislative provision that provides for that compliance certificate or letter or whatever it is, if someone phoned up in the course of an Ontario Human Rights Code hearing and said, "Well, does this company comply? Are they going to get the benefit of this consequential amendment," the commission could say, "Well, actually, they're subject to a complaint under subsection 24(1) right now, so they're not in compliance with part III." It could be because they haven't posted the information properly or they failed to maintain certain employment equity records, which has nothing to do with the plan itself; it may be entirely an administrative matter. Is that a possible problem?
Ms Beall: Mr Murphy, in section 51, when you're talking about approved plans, under clause 51(1)(a) it says, "If the Employment Equity Tribunal has determined that the plan complies with part III," and again it goes on, "If the Employment Equity Commission has determined that the plan complies with part III." So the specific wording refers to finding a plan in compliance.
Mr Murphy: So then your argument is that paragraph 24(1)3 is the only section that would relate to the consequential amendment?
Ms Beall: No, the section Mr Bromm referred you to was section 22.
Mr Murphy: No, I understand. No, no. In the circumstances, I'm saying that 22 is the audit section. It could very well be that the commission has no idea whether the plan is in compliance or not because it hasn't gotten around to giving an audit. In fact, I see that very likely being the case, given the -- I don't know how many thousands of employers are going to be implementing, but quite a few thousand, and the commission will not have time at the best of times. I mean, the audit system is not based on ensuring that you go out and make sure everyone complies. It's random audit. That's the nature of the system. So there are going to be lots of employers, absent some kind of complaint, where the commission will have no idea whether they are actually in compliance or not. It will just have to assume compliance, I guess.
So 22 won't cover it. Maybe 24(1)3, where basically what the commission will say is, "Well, we don't have an order on file relating to 24(1)3, and therefore it complies"?
Ms Beall: No. There are no deemed-compliance provisions in the legislation.
Mr Murphy: No, I know.
Ms Beall: You're not deemed to comply unless told otherwise. The wording in section 51 says if you have been found to be in compliance.
Mr Murphy: Does the "found to be in compliance" mean you have to have gone through a process first?
Ms Beall: The wording is, "has determined that the plan complies." I would suggest to you that the wording "has determined that" means that you have come to a determination which involves looking into the issue and making a decision about the issue.
Mr Murphy: What you are telling me is that if there's been no audit under 22 and nothing happening under 24, then this provision means that an employer would never be determined to be in compliance?
Ms Beall: What I am saying is that if there has been no audit under section 22 and there's been no order issued under section 24, then for the purposes of section 51 of the bill, the employer would have the opportunity to rely on the provisions of subsection (1). That is, they have a plan that may be taken into consideration, as opposed to subsection (2), where they have a plan which has already been officially approved.
Mr Murphy: That's even worse. You may be right in what you say, in interpreting, but that strikes me as bizarre, that because they haven't been complained about, they only have a permissive right to have their plan, but if there's a complaint and it's been upheld, there's been a determination and they must take it into account. That seems a strange way to do it. I'm not denying that what you said is what this says, but if that's what it says, it's an odd policy to have. I don't see how that can work out.
You're looking at me quizzically, which means you're not following what I'm saying, which is probably because I didn't have enough drugs: cold medicines, cough syrups, that kind of stuff.
Mr Harnick: You don't have to explain.
Mr Murphy: Let me run through this again. What you're saying is that in 24.1, the obligation by the board of inquiry to take into account the cost under a plan only arises if there has been a determination by the commission that the plan complies. Let's start there. Am I right that far?
Ms Beall: The mandatory obligation, yes, arises only if it has been approved, either by the commission or by the tribunal.
Mr Murphy: I'm going to deal with the commission to start, because that's what this section deals with. So the only circumstances where the commission goes through a determination is either by audit or by some complaint that triggers a 24.1 or something that's obvious on the face of the plan.
Mr Bromm: I'm just going to verify that there's no complaint mechanism to the commission. The way I'm hearing you, I think you're looking at 22 and 24 as separate entities, when in fact they are not.
What 22 does is permit the commission to conduct an audit, and what 24 does is provide for the order-making powers in the course of the audit. They will not be separate events. The commission won't choose either 22 or 24; they're read together.
Mr Murphy: All right. Okay.
Mr Bromm: And 24 doesn't set up a separate complaints mechanism apart from the auditing mechanism, which is not complaint-based.
Mr Murphy: What you're saying is that 24 only arises after an audit?
Mr Bromm: In the course of or after an audit; that if the commission finds during the course of an audit that any of those things exist, it can order compliance.
Mr Murphy: I guess I don't read it that way. I mean, 24.1 can be used arising out of an audit procedure, but I don't think there's anything limiting in 24.1 that says you have to have conducted an audit in order to have access to the powers in 24.1. Am I right in that regard?
Mr Bromm: I guess you're right, except I don't know how the commission could make a determination of any of those without having conducted some form of investigation.
1620
Mr Murphy: That's why I'm getting back to this deemed compliance and lack of it. That would be my concern too, but there's nothing in here that says it can't do that. It says what it says, that it may order an employer without a hearing if it considers that any of the following circumstances exist. It doesn't say "after an audit."
Ms Alboim: How does it consider that any of the following circumstances exist?
Mr Murphy: That's up to it, I assume, because you give it the specific right not to have a hearing. An audit may be one of the ways in which it does that, but this provision does not say that you have to have an audit before you have access to the order-making powers under section 24.1, and that's a concern to me, that fact alone.
The second is going into this consequential amendment. It just strikes me as an odd policy that, unless an audit has been conducted, you can't have access to the obligation to take into account your employment equity plan. I don't know how many audits they expect to do in the course of a year. That's probably subject to staffing and the money it's going to have and all those other issues. Mr Mills was a tax inspector at one point in his life. What was the percentage of audits you did?
Mr Gordon Mills (Durham East): Small.
Mr Murphy: About 1% maybe of the total people?
Mr Mills: About 2%.
Mr Murphy: About 1% or 2%, so you're going to have at most, in the course of a year, 1% or 2% of the people who file whom you're going to be able to do an audit on. So the 98% who are left are not going to be able to have access to a provision where their plan must be taken into account, and that can't be the policy.
Ms Alboim: No. I think that what you are forgetting to take into account is what is "normal process" in the course of procedures that are undertaken by the Human Rights Commission currently and a board of inquiry currently. Clearly, it would be in the best interests of the commission and the board of inquiry to look at all the circumstances that apply in a particular circumstance.
What this provision says is that if there has been an approved plan by either the Employment Equity Commission or the Employment Equity Tribunal, given the expertise of the Employment Equity Commission and the Employment Equity Tribunal in determining whether a plan is a good one or a bad one, that approval should not be tampered with by another party. It should be accepted at face value and therefore the costs involved in implementing an approved plan must be taken into account.
If, however, there is no approved plan in place, it is up to the Human Rights Commission and the board of inquiry to look at the circumstances before it, which would include looking at that plan, so that they could make the determination whether it is a good plan in the opinion of the Human Rights Commission and the board of inquiry, so those costs really should be taken into account, or whether it is frankly not a very good plan and therefore the employer should not be excused, if you like, from responding fully to the individual complaint and should be expected to respond fully to that individual complaint and its remedy.
The Human Rights Commission does have some expertise in this area but it is felt that if the Employment Equity Commission and the Employment Equity Tribunal have already made that determination, that should oblige the Human Rights Commission and the BOI to take that into account.
It is permissive in the sense that it provides the opportunity for the OHRC and BOI to look at the circumstances before in order to make that determination, but only requires them in the cases of an actual approved plan.
Mr Murphy: I'm going to come back but I'll let you ask one.
Mr Harnick: Did I hear it said earlier that section 22 is to be read in conjunction with section 24?
Mr Bromm: Yes, that's always been my understanding that 24 comes out of 22.
Mr Harnick: Where does it say that?
Mr Bromm: It doesn't say it, but it's the way the whole part is structured. As far as the audit and enforcement by the commission are concerned, the commission goes and does its audit. In the course of that, it may make an order under 24.
Mr Harnick: It doesn't come anywhere close to saying that. That may be the way you envision it working, but surely the people who are going to be using this act are entitled to at least see the words, when you get to section 24, "The commission may, having completed an audit pursuant to section 22, without a hearing order an employer to take the specified steps."
Just because that's what you believe is the way it's supposed to work, you can't impose that on people, because it doesn't say that. It doesn't even come close to saying that. Quite frankly, I'm shocked. If you're not going to allow a hearing, at least say that section 24 and section 22 are related, that section 24 can't take place till after the audit. But that's not what it says. It's two totally different sections, two totally different functions. I can't conceive that you wouldn't at least link the two sections with some sort of wording. How can't you, if that's what it really means?
Mr Murphy: I'm sure they'd be prepared to accept a friendly amendment to that effect.
The Chair: Any further comment?
Mr Harnick: Quite honestly, quite apart from the politics of this thing, and I suppose everything is full of politics, don't you have to say so? It's all well and good that that's the way you believe it's going to work, but it doesn't say that any way imaginable. Surely, if you're going to not have the right to a hearing but it's got to be subject to the audit, at least say it's subject to the audit. I don't understand how you can carry on with this in the form that it's in.
Mr Winninger: Maybe we could hear from legislative counsel on this matter. I don't have the same problem you do, so perhaps when you're done we could hear from legislative counsel as to the normal rules of interpretation.
Mr Harnick: Okay. Because it's all well and good, but quite frankly, until this gentleman indicated that section 24 was read in conjunction with section 22, I had no idea.
You've got a choice here: You can have an audit or you can go ahead and do what section 24 says. First of all, it's two separate sections, with a section in between. They're all unrelated, or they can certainly be read that way. You're not talking about one single section; you're talking about what might be two separate codes of procedure. Even if legislative counsel tells me that -- and I can't conceive that she will, because I don't know of a rule of judicial interpretation that can link two unrelated sections -- I can't conceive that you wouldn't want to amend it. There's nothing sinister about it, but it seems to me that there's a great big hole here.
Ms Beall: I'm prepared to assist in this matter. Subsection 22(1) gives the Employment Equity Commission the power to conduct an audit. Now it doesn't, in that subsection, specify what the full process of an audit is. It implies the possibility of the commission to look into the matter in order to get sufficient evidence to make a consideration on the issue.
Mr Harnick: I understand that.
Ms Beall: If I may, I think that what Mr Bromm was trying to explain when he explained subsection 24(1) arises out of the audit is the concept that the commission has to make some sort of inquiry in order to come to a determination that it considers any of the circumstances existing. So the question of the audit is a term meaning that they can look into matters with respect to employers.
If I may finish, the important part is that the word "audit" is repeated in 22(2), and that's where the teeth or the issue of the audit in terms of the powers of investigation -- but an audit means that you can look into the matter, because you can't issue an order without having at least looked into the matter sufficiently.
Mr Harnick: Where does it say that?
1630
Ms Beall: If I may, subsection 24(1) says it may, "without a hearing, order an employer to take the specified steps to achieve compliance with part III if it considers that any of the following." To consider is more than --
Mr Harnick: Can't you just put in then, "if it considers, following an audit in section 22"?
Ms Beall: If I could suggest, if you say, "following an audit in section 22," the question arises, when is an audit under section 22 then completed? The question then arises, do we have another litigious section or another litigious provision? "If it considers" ensures that there has to be looking into the matter and reasoned consideration in order to do that. Section 22 gives you the power to make the inquiry.
Ms Alboim: Can I just add to this? I think it's important, though, Mr Harnick, if you look at 24(1), the order-making capacity of the commission deals with a variety of issues, and "if it considers" means the commission has to have done something to arrive at a conclusion. For example, if you look at 4, 24 also deals with, "The employer has not filed a certificate or a copy of an employment equity plan."
You don't have to do an audit for the commission to know a certificate has not been filed. The commission either has received the certificate or has not received the certificate. But it can look at its internal records and say: "Hey, this employer has not filed. I am going to order them to file." In that case, they would be ordering without an audit because an audit is not necessary. But what they have to have done is considered before they issued an order.
Mr Harnick: I can agree with you maybe on that one section, because you don't need an audit to know whether someone's filed their papers or not. But the fact is, you're taking away the right to a hearing.
It seems to me that the word "consider" is a pretty broad word. "Consider" could be one person sitting at a desk and telling his brain to decide: "Is this done the way I'd want it to be done? Well, I've considered it, I've thought about it." It could be two people having a meeting with one another.
But surely, when counsel says there's a link between section 22 and section 24, the legislation should say that if that's the intention. There's nothing sinister about the legislation saying that. Nobody's trying to trap you. But when counsel says there's a link between 22 and 24 and the legislation is totally silent on it, I don't see that link unless it says it.
I can't understand why you wouldn't want to go back and correct these sections. I appreciate that you're really in a hurry to get this done and you want to get it through the Legislature, but, quite seriously, what it says and what counsel is telling me are two different things.
The Chair: I was about to say that many of you have given your considered opinion. We could repeat it again, if you like, but I think we've heard on this matter. Mr Murphy, do you want to continue with this?
Mr Murphy: Yes. There are certain things in this subsection, 24(1), which I agree would not require an audit. You're filing a paper, and whether you have the piece of paper or not should be pretty obvious. But I think there's then some sense in saying, when you're separating out those sections and so on -- I mean, those are administration matters that should be dealt with administratively, but there's some pretty substantive stuff as well.
The whole issue of compliance of the plan can be determined without a hearing and, on my reading of this, without an audit. Presumably, for the purposes of arguing that it did not comply I would think was why the commission would look into it. If it thought it complied, it wouldn't bother.
That is a substantive question which is not an administrative question, and I have a real concern, because you are taking away the right to a hearing. Actually, the argument Scott made that it's linked with an audit makes more sense to have the words "without a hearing" if you're going to require an audit to be part of your process of determination, because then you've had someone go in and you've got the paperwork and you've at least had some obligation to go in there and get their hands-on feel in the employer's workplace. You've had at least that amount of protection for the employer to have access to information that could show the validity of the plan by the audit process.
I'm wondering whether there is any willingness on the government side to divide this out a little bit, to say that for the substantive issues it should be an audit first before 24(1) kicks in and for the administrative issues you don't need to do that. Mr Fletcher, you've been carrying the ball. Any interest?
Mr Fletcher: Not to my knowledge.
Mr Murphy: You haven't been carrying the ball.
Mr Fletcher: I said, "Not to my knowledge."
Mr Murphy: Not even to your knowledge. That's a worrisome thought. That means not to your knowledge, you're not willing to consider that. So you're going to do what you're going to do.
The Chair: Mr Mills, I have you on the list. Do you want to comment?
Mr Mills: Yes. The comment I'd like to make with respect to my colleagues across the way there is that I'm not a lawyer, and perhaps that's an advantage here, not to be one, because as someone who, over the years, has been called upon to interpret all kinds of legislation in the way that I conducted my employment and many other things, I don't have any difficulty understanding this. I think perhaps that's because I'm not privy to the training and knowledge that you fellows have about reading into all this.
But I must tell you that if I was asked to comply with this as an individual, it doesn't -- and perhaps that's what we should get on to the record, that as a sort of person who would get hold of this act without benefit of any law training, I must say that I can understand, quite honestly, what's going on here.
It says quite clearly in 22, you know, blah, blah, blah. Then it comes down to 24 and it says, "if it considers that any of the following...exist." That really to me is the crux of this matter. Has this happened? Has that happened? As the deputy said to me, it's not far to the certificate. That is cause for me to go to them and say, "Well, you know, where's your certificate?" and we can act from there.
I'm not trying to be argumentative or to belittle your great knowledge of the bar, but as a layperson asked to interpret this act and as one who's interpreted a lot of bills and regulations in a lifetime, I must say quite honestly, sitting here, I have no difficulty with it, if that's any help.
Mr Murphy: We know how unhappy everyone is with the interpretations --
Mr Mills: Yes, exactly.
Mr Murphy: Actually, I do have one, because I want to get back to the consequential amendments to the Human Rights Code. Just to follow up on what the deputy said, what you're saying to me then is that you want, before there is access to the right to have the costs of your plan considered, someone to review it from a judicial or quasi-judicial perspective, having the Employment Equity Commission rule on it by virtue of the determination referred to in clause (b), or if that hasn't occurred the commission is supposed to look at it by virtue of the permissive language under (1). Am I right?
Ms Alboim: Or the Employment Equity Tribunal.
Mr Murphy: Well, that's right, but that's in the -- I guess that goes back to make the point we were making earlier, that you're going to end up with quite possibly two different sets of interpretations of what plan compliance means.
I'm not even sure who's going to first get to the issue of what plan compliance means, given the backlogs that you're going to have. It'll probably be the commission that will, but I don't know. Is the commission, do you know, planning on issuing guidelines on what plan compliance means?
Ms Alboim: The commission will be and is preparing all kinds of supportive materials for the parties to implement.
1640
Mr Murphy: Positive materials as well? I assume those commission materials are not going to be binding on the tribunal; they'll be, at least presumably, somewhat persuasive. But do you know to what degree the Human Rights Commission has to take that into account in a hearing under subsection 24.1(1)? It's just evidence like any other evidence? Presumably it's not bound by it.
Here's the circumstance: The commission says, "You meet the following criteria, you have a plan that complies, and that's what our commission ruling will be." Some individual employee or organization, on behalf of an employee or a group of employees, could come and say, "No, we don't think that's good enough. We're going to take it to the tribunal," and the tribunal can agree with them and disagree with the commission, in theory, that there should be some further criteria added to it. Correct so far?
Ms Alboim: You're talking about the Employment Equity Commission and the Employment Equity Tribunal at this point, those two things?
Mr Murphy: Yes.
Ms Alboim: It would be my expectation that the legislation is written in such a way and the regulations are written in such a way that the guidelines would be additional help to employers, but it would be on the legislative basis and the regulatory basis that the tribunal would be making its determination. The guidelines and helpful hints the commission will be developing and making available to all employers will, again, be based on that legislative and regulatory framework.
Mr Murphy: This goes back to the discussion we had about the amendment that was proposed by ARCH, among others, about the threshold level of undue hardship versus reasonable efforts, because the commission has the lower standard of reasonable efforts. Sorry, when I say "commission," the employment equity arm of this will have the lower threshold of reasonable efforts, whereas the commission is governed by undue hardship -- in some circumstances, in any event.
I'm wondering whether you could then have the result where because an employer has a plan, it's obligated to take it into account on a reasonable efforts standard, but because another one may not have a plan, it's only permitted to take it into account on an undue hardship standard. So the absence of the determination by the Employment Equity Commission could actually be detrimental to an employer because of the standard that's going to be applied in its defence.
Ms Alboim: We do not foresee that as an outcome of the amendments or the legislation. What we are saying is that the Ontario Human Rights Commission and the board of inquiry, in ordering a remedy in response to an individual case of discrimination, will take into account the costs that have been incurred in the development and implementation of the employment equity plan if those plans have been approved. If those plans have not been approved, they will still look at those plans and make the determination as to whether they should or should not take them into account, depending on their assessment as to the quality of that plan.
Mr Murphy: Absolutely, but then the question is, what are the criteria of assessment? In the Human Rights Commission context, it would be undue hardship.
Ms Alboim: Even now, in terms of the work the Ontario Human Rights Commission does in terms of employment equity, they take into account the costs incurred by --
Mr Murphy: That's one of the criteria of undue hardship.
Ms Alboim: That's right, and that will continue to be.
Mr Murphy: Absolutely, but I guess my point is, that is ultimately the degree of deference that's shown to the plan in the two circumstances, because if the commission has ruled and made a determination under subsection (2), the legislation requires an obligation to provide deference to that cost calculation in the plan. But that's a reasonable effort standard of that plan, as part of the cost standard, whereas if you haven't had a determination by employment equity, then the Human Rights Commission assesses the plan and it assesses costs as part of its undue hardship calculation. The employer could therefore have a plan that, in that context, satisfies reasonable efforts but not undue hardship.
Ms Alboim: We don't agree with that interpretation.
Mr Murphy: Boy, I think the lawyers are going to have a field day with that one.
Mr Harnick: Just very briefly, I want to go back to this section 22-section 24 controversy. I listened to what Mr Mills said, and I tend to agree with him because I think he premises his remarks on the fact that there's no connection between 22 and 24 and they read the way they are. The red herring may be that section 22 is in fact related to section 24. Maybe I can ask this question to the deputy: Is this premised on the basis that there is no relationship between sections 22 and 24? Then I can live with it because at least I know where you're coming from.
Ms Alboim: First, let me clarify that my good friend and colleague Scott Bromm is not counsel to the --
The Chair: Sounds like one.
Ms Alboim: He is a lawyer, but he does not act in the capacity as counsel. He is a trained lawyer, but works as a policy adviser with us.
Mr Bromm: I'm fired.
Mr Harnick: I didn't mean to do this to you; my apologies.
Ms Alboim: I just want to say that with subsection 24(1), with the words "if it considers" in it, the expectation is that in some cases that consideration will be a direct result of an audit, as in section 22. In some cases that consideration may not be as a result of a full audit, because there may not be a need for an audit for it to come to the conclusion after some consideration. So there is a relationship in some cases; there is not a necessary relationship in all cases between 22 and 24.
The Chair: I think we're ready for the vote on this matter. All in favour of Mr Fletcher's motion? Opposed? That carries.
Interjections.
The Chair: Recess for three minutes or so?
The committee recessed from 1647 to 1659.
The Chair: I call this meeting back to order. We're on subsection 24(4), Liberal motion.
Mr Murphy: I move that subsection 24(4) of the bill be amended by adding after "tribunal" in the first line "shall hold a hearing and."
This amendment arises out of a suggestion by -- I can't remember the name of the group that came before us. On the basis of a legal opinion, they had suggested that this wording should be included to make it clear that while the commission may not have to hold a hearing, the tribunal should be required to. This was intended to make that clear, that the tribunal must hold a hearing before it does anything with respect to a commission order under 24(1).
The Chair: Discussion? All in favour of the motion? Opposed? That is defeated.
All in favour of section 24, as amended? Opposed? That carries.
Subsection 25(2), a government motion.
Mr Fletcher: I move that subsection 25(2) of the bill be amended,
(a) by striking out "the employer's employment equity plan" in the fourth and fifth lines and substituting "an employment equity plan"; and
(b) by striking "the plan" in the sixth line and substituting "a plan."
This is a technical amendment which allows employers to have more than one plan rather than one overall plan.
The Chair: Discussion? Seeing none, all in favour of this motion? Opposed? It carries.
Subsection 25(2), a Liberal motion.
Mr Murphy: I think it serves the same purpose, if I'm not mistaken, as the government motion, so I don't need to move it.
The Chair: Very well. Subsection 25(2), PC motion.
Mr Harnick: I move that subsection 25(2) of the bill be struck out. It speaks for itself.
The Chair: Any discussion? All in favour of the motion? Opposed? That is defeated.
All in favour of section 25, as amended? Opposed? That carries.
Subsection 26(1), a PC motion.
Mr Harnick: I move that subsection 26(1) of the bill be amended by striking out the portion before the paragraphs and substituting the following:
"Application for failure to implement plan or settlement
"(1) An employee covered by an employment equity plan may apply to the tribunal on any of the following grounds."
The Chair: Discussion? All in favour of this motion? Opposed? It is defeated.
Section 26, a government motion.
Mr Fletcher: I move that section 26 of the bill be amended as follows:
1. By striking out "the employer's employment equity plan" in the second and third lines of paragraph 1 of subsection (1) and substituting "an employment equity plan."
2. By striking out "the employer's employment equity plan" in the second and third lines of paragraph 2 of subsection (1) and substituting "an employment equity plan."
3. By striking out "the employment equity plan" in the second and third lines of subsection (2) and substituting "an employment equity plan."
Again, it's a technical amendment which addresses more than one plan rather than one overall plan.
The Chair: Discussion? Seeing none, all in favour of the motion? Opposed? That carries.
Mr Murphy: Sorry, can I ask one question about subsection 26(1) before we leave it, just of counsel?
The Chair: We'll do that. We have voted, but go ahead.
Mr Murphy: We didn't vote on the section; we just voted on the amendment to subsection 26(1).
The Chair: Yes. Oh, it's on the whole section. Go ahead.
Mr Murphy: On the "any person" wording, is there any limitation in the law of standing or anything that would limit that in any way? Do they have to have an interest in the proceeding to make that application?
Ms Beall: The legislation doesn't require that they have an interest in the proceeding. The term "person" is defined in the legislation as being "any entity, whether or not incorporated."
Mr Murphy: So anybody from a competitor to an advocacy group, to an employee or a prospective employee who was turned down can make that application?
Ms Beall: If they can make an application on any of the specific grounds set out in section 26.
Mr Murphy: So yes.
Ms Beall: Yes.
The Chair: All in favour of section 26, as amended? Opposed? That carries.
Subsection 27(5), a government motion.
Mr Fletcher: I withdraw that motion.
The Chair: Okay.
On section 27, any discussion? Seeing none, all in favour of section 27? Opposed? That carries.
Subsection 28(2), a government motion.
Mr Fletcher: I move that subsection 28(2) of the bill be amended by striking out "the employment equity plan" in the third and fourth lines and substituting "an employment equity plan." That's for the same reasons as before.
The Chair: Discussion? All in favour of the motion? Opposed? That carries.
Mr Murphy: Can I ask a question on 28? I was trying to remember the applications in the Labour Relations Act that you bring if your union isn't representing you fairly. I'm trying to remember how that compares to the procedures you go through under OLRA. Do you recall?
Mr Bromm: Do you mean on the duty of fair representation and the procedure you go through when you're a claimant?
Mr Murphy: Yes.
Mr Bromm: You go to the labour relations board, and it's the employee who feels they are aggrieved who makes the application.
Mr Murphy: And am I right that both the union and employer are respondents in that application?
Mr Bromm: No, I think it's generally the union, because that is who has the duty of fair representation. It's the union, not the employer.
Mr Murphy: But presumably under this provision, because it's a conjunctive "and," both the employer and bargaining agent would be respondents in this kind of application?
Mr Bromm: Yes, because this would be a good-faith application. The Labour Relations Act also has a good-faith requirement. In that sense, both the bargaining agent and the employer are bound by the duty to bargain in good faith. This is parallel to that and not really meant to be parallel to the fair representation section.
Mr Murphy: In terms of the standard applied, you mean?
Mr Bromm: In terms of who the requirement applies to as well. I don't know if the Employment Equity Tribunal will be applying the same good-faith standard as they do in labour relations. They'll probably have the same criteria, but it's not determined at this point.
Mr Murphy: Is there any way for an employee to make this kind of complaint to the commission, or is it straight to the tribunal?
Ms Alboim: Straight to the tribunal.
Mr Murphy: It's straight to the tribunal. The commission's role is only to -- in 32(2) there is a commission right to intervene in tribunal hearings to which it's not already a party.
Mr Bromm: Anything that has to do with the bargaining agent, the way the legislation is drafted, has to go straight to the tribunal. If you look at the way section 24 is worded, it's only the employer; there's no reference to section 14 of the act, which governs the joint responsibilities set out in 24, so you go to the tribunal to enforce the good-faith requirement.
Mr Murphy: Okay.
The Chair: All in favour of section 28, as amended? Opposed? That carries.
1710
Section 28.1, Mr Fletcher.
Mr Fletcher: I move that the bill be amended by adding the following section:
"Application re employers
"28.1(1) An employer, an employee of the employer, or a bargaining agent that represents any of the employer's employees may apply to the tribunal for a declaration that the employer and one or more other employers constitute a single employer for the purposes of this act.
"Evidence
"(2) The employers that are parties to the application shall adduce all facts within their knowledge that are material to the application.
"Order
"(3) The tribunal may make an order that the employers constitute a single employer for the purposes of this act if the tribunal finds that,
"(a) the employers carry on associated or related activities or businesses under common control or direction;
"(b) the employers carry out employment policies and practices under common control or direction; and
"(c) the order is necessary to give full effect to the requirements of this act and the regulations."
This amendment arises from the addition of the deemed-employer provision to subsection 3(3.1). Clause (a) of that provision deemed two or more employers to be a single employer if the employers are declared to be a single employer by the Employment Equity Tribunal under section 28.1.
The amendment gives effect to clause 3(3.1)(a) by permitting employees, employers or bargaining agents to apply to the Employment Equity Tribunal for a declaration if two or more employers are a single employer for the purposes of this act.
Subsection (2) requires the employers who are parties to the application to produce any material relevant to the application; for example, information with respect to the direction or control of the business and information with respect to the implementation of employment policies and practices.
Subsection (3) sets out three criteria that the tribunal must apply in assessing whether to make a single-employer declaration. In assessing any application, the tribunal must consider whether the employers carry on associated or related activities under common control or direction, whether the employers carry out employment policies and practices under common control and direction, and whether the order is necessary to give full effect to the requirements of the act and the regulations.
Mrs Elizabeth Witmer (Waterloo North): In taking a look at this amendment I see that it does introduce a three-part test for the tribunal to make a related-employer determination. Certainly that does go a bit in the direction of what the employer community was concerned about. However, I still have one question about which I want some clarification from the government. Will management still have the right to have more than one employment equity plan if a related-employer determination is made?
Ms Alboim: Yes.
The Chair: Further discussion? All in favour of section 28.1? Opposed? Carried.
Section 29(1.1), a government motion.
Mr Fletcher: I move that section 29 of the bill be amended by adding the following subsection:
"Burden of proof
"(1.1) If an application is made under subsection (1), a person who is alleged to have intimidated, coerced, penalized or discriminated against another person contrary to section 37 has the burden of proving that the person did not contravene the section."
This amendment requires that when there is an application by an employee who alleges that he or she was intimidated, coerced, penalized or discriminated against, the person who is alleged to have carried out the action against the employee, who is usually the employer, bears the onus of showing that the action against the employee was not taken because of an attempt by the employee to exercise a right under the Employment Equity Act.
This amendment also reflects the fact that the employer is in a better position to show exactly why certain actions were taken against an employee, and if good reasons cannot be demonstrated by the employer, it will be presumed that the actions were taken in contravention of section 37.
The Chair: Discussion? Seeing none, all in favour of this motion? Opposed? That carries.
On section 29, there's a PC motion. It says here, "I move that section 29 of the bill be struck out." Were you proposing to propose it as a motion?
Mrs Witmer: Yes, we will propose that as a motion.
The Chair: I suggest that the best way to deal with this is to simply vote against the whole section. That is the way I recommend to you. If you were to strike out part of a section, it would be quite in order, but --
Mrs Witmer: I will withdraw the motion.
The Chair: Very well. All in favour of section 29, as amended? Opposed? That carries.
Subsection 30(1), a government motion.
Mr Fletcher: I move that subsection 30(1) of the bill be amended by adding after "(application by commission)" in the fourth and fifth lines "28.1 (application re employers)."
This is a consequential amendment arising from the additional application procedure to the tribunal which was added to section 28.1.
The Chair: Discussion? All in favour of this motion? Opposed? It carries.
Discussion on section 30? Seeing none, all in favour of section 30, as amended? Opposed? That carries.
Subsection 31(4), a government motion.
Mr Fletcher: I move that section 31 of the bill be amended by adding the following subsection:
"Decision to not deal with application
"(4) Despite subsection (3), the tribunal may, without a hearing, decide not to deal with an application if it appears to the tribunal that,
"(a) the subject matter of an application is trivial, frivolous, vexatious or made in bad faith; or
"(b) the application is not within the jurisdiction of the tribunal."
I believe that's self-explanatory.
Mrs Witmer: I believe there is a similar section within the Human Rights Code, section 34. The question I have is, has there ever been a decision made by that particular body not to deal with an application if it appears that the subject matter of an application is trivial, frivolous, vexatious or made in bad faith? How often would that determination have been made?
Mr Bromm: I'm not aware of how often they exercise the power under this section, but I know they do use it to not have applications go forward.
Mrs Witmer: I would appreciate getting some idea of how often within the last five years that has been brought to bear.
Ms Alboim: We will undertake to come back to the next committee with that.
Mrs Witmer: I'd appreciate that.
Mr Murphy: The section in the Human Rights Code has a couple of other additional provisions to this. One of them is the appropriately dealt with under another act and the other is the time limitation provision. I'm wondering why it was decided not to have a time limitation provision in this act.
Mr Bromm: I'm sorry, I can't respond. I am not aware of any reasons why this section --
Mr Murphy: I actually expected some of the political people at the table to answer that question, like Mr Fletcher, the parliamentary assistant. Does he have an answer?
Mr Fletcher: No.
Mr Murphy: You don't know the answer? Does the minister know the answer?
Hon Elaine Ziemba (Minister of Citizenship and Minister Responsible for Human Rights, Disability Issues, Seniors' Issues and Race Relations): In this particular case, Mr Murphy, we felt that the time applica tion would not be applicable to this particular bill and we felt it was not necessary to include that at this time.
Mr Murphy: Can I ask why you didn't think it was necessary?
Hon Ms Ziemba: We have a five-year review that will take into consideration whether we need to review this at that particular time. That will be what we will take into consideration.
Mr Murphy: Yes, that's what you'll do if there's a problem. What I'm asking is why you didn't include it in the first place.
Hon Ms Ziemba: At this time, Mr Murphy, as I stated earlier, we did not feel it was necessary.
Mr Murphy: I understand that you didn't feel it necessary. There must be some reasons, criteria, rationale, purpose, function, for that not to be included.
Ms Beall: Perhaps, Mr Murphy, I can assist. If one looks at the types of applications which go to the Human Rights Commission, they are specific incidents of discrimination or alleged discrimination that occurred on a particular date. The type of applications that will be going to the Employment Equity Tribunal are failing to comply, failing to implement. It doesn't have a specific date, necessarily, attached to it; it's an ongoing concept. So having a time limitation in that kind of context would be one that, as the minister pointed out and I can say from a legal point of view, would not necessarily be appropriate.
Mr Murphy: Presumably you're going to have an employer who files a plan and then the people in the workplace, employer and employees and others, if no complaint is filed, are going to act as if that plan is in order, more so the employer. But at some point down the road someone could come along and say, "Actually, no, that was not an appropriate plan and you'll have to change retroactively."
We're being called to a vote.
The Chair: It's a five-minute bell. We can decide whether to come back after the vote or to adjourn. Any preference?
Mr Mills: I suggest, Mr Chair, in view of the clock, that we adjourn.
The Chair: All in favour? Agreed.
Mr Fletcher: Are we adjourning until next Monday?
The Chair: We are adjourning today. Tomorrow, if we receive notice of something else happening, we'll advise the members of that. This meeting is adjourned.
The committee adjourned at 1722.