STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
CONTENTS
Tuesday 12 October 1993
Employment Equity Act, 1993, Bill 79 / Loi de 1993 sur l'équité en matière d'emploi, projet de loi 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 Winninger
Fletcher, Derek (Guelph ND) for Mr Duignan
Also taking part / Autres participants et participantes:
Ministry of Citizenship:
Beall, Kathleen, legal counsel, employment equity legislation and regulations project
Bromm, Scott, policy analyst
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Joyal, Lisa, legislative counsel
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
TUESDAY 12 OCTOBER 1993
The committee met at 1623 in room 228.
EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
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 resume clause-by-clause consideration of Bill 79. Given that this was not recorded, for a variety of reasons, and now it will be, we want to announce that subsection 14(6) has been postponed or stood down and there was unanimous agreement to do so.
Mr David Tilson (Dufferin-Peel): Mr Chair, before I give consent or consider consent, I'd like to know the rationale as to why you're asking it to be stood down.
Mr Derek Fletcher (Guelph): Section 14, along with some other sections coming up, is consequential to section 11, which has been previously stood down. We will stand down any that have any impact on section 11 until we've finished the stand-downs and the others, and then go back over the stand-downs and make the adjustments to them.
Mr Tilson: Just looking at section 11, it really has nothing to do with subsection 14(6). If the government's not prepared to proceed with this, that's one thing. I'd just like to know why. I don't understand the rationale. Section 11 really has nothing to do with subsection 14(6).
The Chair: David is slowing the process down. We're crawling. Well, you take your time.
Mr Tilson: I guess that's the problem. I haven't been to some of the clause-by-clause discussions; in fact, I haven't been to any of the clause-by-clause discussions. But my understanding, in talking to other committee members, is that there has been considerable difficulty in proceeding with sections. I guess at this time Mr Fletcher has indicated that there are going to be other sections that he's going to ask to be stood down, as well as ones that have already been stood down.
My concern is that if the government's not ready to proceed, the committee has several other bills that it could be dealing with. Whether it is appropriate to proceed with Bill 79 when the government members aren't ready to proceed with amendments -- it might be more appropriate to deal with other bills. I asked a very simple question. We're flipping through pieces of paper and trying to figure out where we're going. I understand if there are problems, but this committee has a lot of work to do, a lot of bills to look at, and it may be appropriate that the whole bill be stood aside so that we can get on with a long list of bills that this committee needs to work with.
The Chair: Mr Tilson, I appreciate the comments you're making, but as Chair I would like to facilitate its movement as best we can. There are many sections here that can be dealt with. I realize that postponing it might complicate it for you, but I would prefer to move along.
Mr Tilson: Mr Chair, it's not complicating it for me. I guess the question is, is the government ready to proceed with this bill at this time before this committee?
Mr Fletcher: Yes.
Mr Tilson: I understand that there is a long list of sections that have been stood down, and now we're on notice by Mr Fletcher that there are going to be many more sections that are going to be stood down. I just think it's inappropriate to deal with this bill at this time. I quite frankly feel that the committee has a lot of work to do on other bills and that the whole bill should be stood down so that the committee can get on with the great amount of work it has to proceed with.
Mr Fletcher: The reason there are some items that are going to be stood down is because they do have something to do with other items that have already been stood down. That is why some of these sections are to be stood down until we revisit the sections we've already stood down for clarification, for whatever other reasons they were stood down for in the first place. Once they're clarified, the impact on the other sections will be clear.
Mr Alvin Curling (Scarborough North): Let me see if I can get this in perspective. When we adjourned the last time, it was because you weren't ready. You have a lot of things that were stood down. As soon as we resumed, the first section that we were going to deal with, you're asking to stand that one down again. In other words, you didn't even bring the ball to play. It's not ready.
I must agree with my colleague Mr Tilson when he asked why you're standing this down. We looked at section 11 and you said it's because it has an impact on this. I'm lost to find out what impact it has on section 11, and you didn't explain that so we can proceed. In other words, you really don't know either why you're standing it down and what impact it has on 11. In other words, you're not ready.
We understand that. We know you've been having problems on this. My feeling is that if you have problems, we are ready to cooperate with you, to say, "Take your time." It's a very important bill. Take your time, and when you are ready, we are ready. As a matter of fact, we are ready now. Whenever you are ready, we will say we're ready. We'll all be prepared to proceed with this bill. But on the first one that you brought forward, you said, "Let's stand this one down." Then you're saying, "It's going to have an impact on the rest that we have stood down." You're not ready.
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The Chair: I've heard your comments, Mr Curling. What I would like to do, as the Chair, is to move on with those items that are debatable and that people want to debate. If there is no agreement on standing it down, then we'll debate that, if that's what you want to do. But, Mr Tilson, I'm not sure whether repeating the message will be helpful in terms of us continuing.
Mr Tilson: Mr Chairman, you misunderstand. Obviously, if the government isn't ready to proceed with this particular section, I'm certainly not going to force them on and would be pleased to consent to it. However, it's become more and more apparent, particularly with the response of Mr Fletcher as to why these matters are proceeding down, that the government really hasn't any idea where it's going with many of these sections. It was the best example of doubletalk that I've heard in years.
Mr Fletcher: Thank you.
Mr Tilson: Well, I congratulate you. It said absolutely nothing. Quite frankly, I would think it would be more appropriate that the committee adjourn these proceedings so that we can get on with other work. If the committee wants, if Mr Fletcher, as the parliamentary assistant, is able to come back and tell us that he's ready to deal with the entire bill so that we can get the entire picture of this bill, that would be appropriate.
The Chair: Mr Tilson, you've been very clear --
Mr Tilson: I would accordingly move, Mr Chair, that we adjourn.
The Chair: All in favour of adjournment? Opposed? That motion is defeated.
Is there unanimous consent to stand down 14(6)? Agreed.
Moving on, section 15.
Mr Fletcher: We'd like to stand down section 15.
The Chair: Is there unanimous consent to stand this item down?
Mr Tilson: Why doesn't Mr Fletcher tell us what he's prepared to proceed with, instead of going down the sections?
Mr Fletcher: It has to be done section by section.
The Chair: Mr Tilson, we could do that, or we could move to the next section, which is all right, and 17 is all right, to the debate. Is there unanimous consent to stand this item down?
Interjection: Agreed.
The Chair: There is?
Mr Curling: We consent to stand it down, to go along.
The Chair: That is stood down then. Moving on, section 16. Government member, Mr Fletcher.
Mr Fletcher: We'd like to have section 16 stood down.
Mr Curling: They didn't bring their ball to play.
The Chair: Is there unanimous consent to stand this item down as well? It appears so.
Moving on, section 17.
Mr Fletcher: There's no motion for section 17.
The Chair: There's no amendment to that. Shall section 17 carry as is? Opposed?
Mr Tilson: I'd like to ask a question of the parliamentary assistant on section 17. Section 17 says, "Every employer shall establish and maintain employment equity records in respect of the employer's workforce." How will this be enforced and what will the cost of enforcing this be?
Mr Fletcher: The employment equity records in respect to the employer's workforce will be enforced in the same way that the plan is being enforced. They have to have the records in place in order to submit a plan to the commission. As far as the cost is concerned, I have no idea.
Mr Tilson: You have no idea what this is going to cost?
Mr Fletcher: No.
Mr Tilson: You have no idea what it's going to cost the government to enforce this section?
Mr Fletcher: I have no idea.
Mr Tilson: I am wondering, don't you think you should perhaps stand down section 17 till you can estimate what it is going to cost the government?
Mr Fletcher: No.
The Chair: Any additional questions? No further debate? Seeing none, all in favour of 17, as is? Opposed? That's carried.
Section 18.
Mr Fletcher: Mr Chair, we'd would like to stand down section 18.
The Chair: Is there unanimous consent to do that? Seeing no opposition, yes.
We move on to section 19. Clause 19(2)(a), Mr Tilson.
Mr Tilson: This is a similar amendment to what we had made before with section 6, I believe.
I move that clause 19(2)(a) of the bill be amended by striking out "fifty" in the second line and substituting "100."
The Chair: Do you want to speak to that, Mr Tilson?
Mr Tilson: No.
The Chair: Debate on that motion?
Mr Curling: My only comment on that is that we're voting against this, because if we move to 100, we'll be excluding too many who will be affected under employment equity, so we wouldn't be supporting that amendment.
Mr Tilson: You would not be supporting it.
Mr Curling: No.
The Chair: Further debate?
Mr Tilson: Mr Chairman, in light of that, I guess we're getting back to the issue of what it's going to cost. The government of this province is continually expressing its problems with respect to where it's going to get its revenue, encouraging business to work, more jobs. We all know, listening to the federal election campaign that's proceeding as we speak, how the major issue in this country, let alone this province, is the subject of jobs. We believe this will discourage employers, particularly the smaller employers, from continuing or indeed proceeding and that this is an inappropriate time to have the amount of 50 as opposed to 100.
The Chair: All in favour of this amendment? Opposed? That amendment is defeated.
Mr Tim Murphy (St George-St David): Mr Chair, before we move on, I'd like to ask the parliamentary assistant some questions about 19(1). That's the section that deals with regulations relating to "aboriginal workplace," and I'm wondering if you could provide me with some information on the status of those regulations, whether they're available to be distributed, whether you've reached agreement with the various --
Mr Fletcher: No, we're still working on that. We're still working with the aboriginal sector.
Mr Murphy: Do you have some time line as to when they'll be done?
Mr Fletcher: I can let you know when either later today or the next time this committee meets.
Mr Murphy: That will be fine; thank you.
Mr Curling: I just want to make a comment. You appear to be asking us, Mr Fletcher, to trust you on this matter.
Mr Fletcher: I'm not asking you to trust me, Mr Curling.
Mr Curling: Then what am I basing this regulation on? You're saying the regulation is not ready. We're going to vote on subsection 19(1), where you say the regulation would apply, and you talked about the definition. As you don't have the regulation ready, I ask you, what constitutes an aboriginal workplace? I'm not going to trust you; I'm going to ask you. As the regulation is not here, I'm asking you, what constitutes an aboriginal workplace?
Mr Fletcher: I'm sorry, Mr Curling. I was just reading what -- can you repeat that?
Mr Curling: You're just getting to read it now.
Mr Fletcher: No, I was just reading something that was pertaining to it, but I'm not sure exactly what you --
Mr Curling: My colleague asked you to tell him the status of the regulation. You said they weren't ready, so I presume just by trust we're going to vote on this part of it. In voting on this part, we have to trust that the definition that comes through by the regulation will be satisfying to us, but we don't know what's in that regulation. You said, "Don't trust you," so I'm asking you, should I trust the regulation that is not written, or will you define for me now what an aboriginal workplace is?
Mr Fletcher: Right now the consultation process is ongoing with the aboriginal sector to determine exactly where they fit in the regulations, and part of that is what their workplace will be.
Mr Curling: Then as my colleague stated, could we just stand this down until the regulation is ready?
Mr Fletcher: No. Well, you don't ask me; you ask the Chair for consent.
Mr Curling: No, I'm asking you.
Mr Murphy: At the very least, you indicated that you'd come back with an answer as to the status of the regulation, where you are at, either later today or the next time we meet. I think there's some sense in standing it down until at least you come back to us with that answer as to status; some sense of at least the confines of the debate around some important aspects of how this bill applies.
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Mr Chair, we're seeking unanimous consent to stand subsection 19(1) down till the parliamentary assistant can come back to us with an answer as to the status of the regulation, either later today, when he indicated he might have an answer, or even first thing the next time we meet.
The Chair: Do you want to speak to that?
Mr Fletcher: Rather than stand it down for a period past today, if we can have an agreement to come back to this one today before we adjourn, I will be willing to stand it down until that time.
Mr Murphy: My concern is that I have the answer to the question. If you give me an answer by the end of the day, that's fine by me.
Mr Fletcher: I'll make sure we get an answer to the question about where the status is on that negotiation.
The Chair: Very well.
Mr Curling: So we're standing that down?
The Chair: No, we're not standing it down. He's giving a commitment to bring an answer to Mr Murphy by the end of the day.
Mr Fletcher: That's right.
Mr Murphy: Stood down till then?
Mr Fletcher: We will come back to this one. Or are we going to pass it now? I gave a commitment to come back with an answer.
The Chair: Yes, that's what I thought he was saying. We're not standing it down. He's committing himself --
Mr Murphy: I thought the parliamentary assistant indicated he was prepared to do that.
Mr Fletcher: I'm willing to wait until the end of this meeting, as long as I get a commitment that it is going to proceed.
Mr Murphy: Well, I can't tell you how I'm going to vote until I get the answer.
Mr Fletcher: Maybe I'm not going to stand it down.
The Chair: Mr Fletcher, let me understand you. Are you agreeing to stand this item down, or are you agreeing to bring information by the end of the day that addresses that but it's not stood down?
Mr Fletcher: My agreement is to stand this down as long as we get back to it before this committee adjourns.
The Chair: All right.
Mr Fletcher: Do you understand?
The Chair: There's consent to stand it down.
Mr Fletcher: Well, no, there isn't really, not unless I get the agreement that we will revisit this one today and pass it.
Mr Curling: We've been waiting five months to get the answers.
The Chair: Presumably, Mr Fletcher, if you bring the information, we'll be able to deal with it by the end of the day.
We dealt with clause 19(2)(a). Mr Tilson, the next section which you --
Mr Tilson: Mr Chair, as I recall, what we did was vote on my amendment. We did not vote on subsection 19(2).
The Chair: That's right. We're going through all the possible different -- are there any other questions on (2)? None. Okay, then we will move to the next item, subsection (3).
Mr Tilson: Are you going to vote section by section as opposed to --
The Chair: I was moving on to your next amendment, which is subsection 19(3).
Mr Tilson: So you're going to vote on the whole section?
The Chair: That's right. Given that your subsection, this amendment, relates very much to the motion you just moved and is very consequential --
Mr Tilson: I apologize, Mr Chair; you're quite right.
I would move that subsection 19(3) of the bill be amended by striking out "fifty" in the third line and substituting "100."
I will only say the rationale is the same as for the previous proposed amendment.
The Chair: Mr Tilson, our understanding here is that this section relates very much to what you had moved, clause (2)(a); therefore, the one being consequential to the other, this would not --
Mr Tilson: You're doing a fine job, and I agree with you, Mr Chairman.
The Chair: All in favour of the amendment? Opposed?
We were going to rule it out of order, but we didn't. We just dealt with it this way. All right.
Next are subsections 19(3) and (5) by the government.
Mr Fletcher: I move that subsections 19(3) and (5) of the bill be amended as follows:
1. By striking out "individuals" in the third line of subsection (3) and substituting "employees."
2. By striking out "individuals" in the third line of subsection (5) and substituting "employees."
This is a technical amendment which replaces the term "individuals" with the term "employees." This amendment has been made to ensure that there is consistency with section 6, which creates employment equity obligations depending upon the number of employees employed by the employer.
The Chair: Discussion? Seeing none, all in favour of this amendment? Opposed? That carries.
Mr Murphy: Mr Chair, on subsection 19(4), through you to the parliamentary assistant: There are similar provisions in clauses 19(2)(a) and (b), either the exemption or varying the application. I'm wondering if there have been any attempts to define what those exemptions are, in what circumstances, and whether you have considered any circumstance where you impose less stringent requirements.
Mr Fletcher: No.
Mr Murphy: Am I to take it from that answer that you have not considered, for example, the issue of the farming community we raised last time?
Mr Fletcher: There have been some considered, but there haven't been any decisions made on them.
Mr Murphy: I think I asked both questions, so listen to the whole question. Let's go back to the farming. Does that mean that issue is being considered?
Mr Fletcher: It's being looked at.
Mr Murphy: And has there been consideration to exempt the circumstances related to farmers who needed to hire certain people from out of the country, for example, to come in and pick for a short period of time under this section?
Mr Fletcher: The agricultural workers are not going to be affected; the farm community is not going to be affected greatly by this legislation. Section 50 also does allow for an exemption from this employment equity legislation. I'll let Scott answer.
Mr Scott Bromm: I was just going to clarify that this particular section deals with variation by size of employer, not by sector, so that any application to the agricultural industry wouldn't be dealt with through section 19 in any event.
Mr Murphy: It may or may not be. For example, there are large agricultural interests to whom it would apply, and you may not exempt the sector; you'd apply it to those larger agricultural interests that are corporate interests farming whatever. The concern that was raised was quite specifically the small, essentially family-run, but not exclusively, obviously, small farms. It's a size issue, not a sectoral issue, necessarily. They link, so there's some logic to having it apply perhaps under here or perhaps under section 50. My question was related to whether that had been considered. I'm not sure I got an answer that was very clear.
Mr Fletcher: The threshold of the number of employees is not gravely affecting the agricultural community.
Mr Murphy: I guess we have a difference of opinion on that --
Mr Fletcher: That's probably what it is, a difference of opinion.
Mr Murphy: -- related to exactly those family farm circumstances that we were talking about in ridings like Northumberland and others.
The Chair: Further questions on this section? All in favour of section 19, as amended?
Mr Murphy: I had thought we had an undertaking from the parliamentary assistant, Mr Chair, to come back with the answer on my aboriginal workplace question.
The Chair: Sorry. This whole section is stood down.
Moving on to section 20. Subsection 20(1), paragraph 2, Mr Tilson.
Mr Tilson: Before I read the amendment to subsection 20(1), paragraph 2, in the second line dealing with paragraph 2.2, I will be changing the word "50" to "10."
I move that paragraph 2 of subsection 20(1) of the bill be struck out and the following substituted:
"2. For an employer in the broader public sector with 500 or more employees on the effective date, on the day that is eighteen months after the effective date.
"2.1 For an employer in the broader public sector with 100 or more but fewer than 500 employees on the effective date, on the day that is twenty-four months after the effective date.
"2.2 For an employer in the broader public sector with 10 or more employees but fewer than 100 employees on the effective date, on the day that is thirty-six months after the effective date."
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The reason that amendment to the form that is before the members of the committee is that, I think it was, Mrs Witmer proposed an amendment to subsection 6(2), which was defeated, and this would align itself with that.
The Chair: Debate? All in favour of the amendment? Opposed? That is defeated.
Mr Fletcher: I do have an answer now on 19.
The Chair: Can I suggest we finish 20, and then we'll come back to it?
Mr Fletcher: Yes.
The Chair: Subsection 20(2), Mr Tilson.
Mr Tilson: I'll be withdrawing that proposed amendment.
The Chair: Okay. All in favour of section 20? Opposed? That carries.
Mr Fletcher: Going back to section 19 and the question that was put to me, yes, the consultations are still ongoing -- and don't forget this is a government-to-government negotiation with the aboriginal peoples -- and they are close to an agreement. We cannot put a time line on its conclusion, but we're hoping that it will be soon.
Mr Tilson: On a point of order, Mr Chairman: Because of what the parliamentary assistant has said, I'm wondering whether it's in order to vote on this section when it's quite clear that negotiations are continuing on this definition. Since obviously this committee has no idea what this means, it seems to me it would be out of order to vote on it now.
Mr Fletcher: What is in negotiation is the regulation, not the legislation. The regulation can be changed at any time through order in council. It is not something that has to come back to the Legislature for changing. That's why the negotiation can still go on. But that piece of the legislation can pass and the regulations can govern what happens in that legislation, so really it has no bearing on whether it's passed or not passed.
The Chair: Continue, Mr Tilson; we'll get to you, Mr Curling, in a second.
Mr Tilson: This whole subsection deals with, as it says in the heading, "regulations re aboriginal workplaces," yet there is no definition or draft definition -- there hasn't even been a draft definition -- given to this committee as to what that means. I guess my question to Mr Fletcher, Mr Chairman, is, how can you ask us to vote on some section such as this, which, granted, against our request, is going to be defined in the regulations? But when the whole concept of the subsection deals with what "aboriginal workplace" means, how big it is, how small it is, what the concept of it is, we don't know what that means.
I'm quite aware the last sentence says, "The regulation may define what constitutes an aboriginal workplace," but how can we responsibly vote on this when you don't appear to even have a draft regulation so that this committee can consider it?
Mr Fletcher: It's very rare that a regulation is developed before a law is passed, and it's quite in keeping that you pass a law and then the regulation-making power is passed after the law is made. As far as the definition of the aboriginal workplace, it is ongoing. The legislation will govern what the regs -- and the regs will govern what the legislation can be. But to put the legislation, pass the legislation and then develop the regs -- that's the way it's been done.
Mr Tilson: Before Mr Curling comments, you're right, and I have argued in many committees in this place that I've sat on dealing with different pieces of legislation. Even in their last one, the auto insurance legislation -- which was, in my view, quite draconian -- at the very least we had a set of draft regulations, although we're now being informed that they're being changed as well. But at the very least, your government had a draft set of regulations, because the entire concept of auto insurance was made up through regulations, as it is with this.
If this committee is going to listen to delegations that have come to us -- delegation after delegation after delegation has almost pleaded with you, not with you personally but with your government, to put certain definitions into the legislation. You're obviously not going to do that, but at the very least we should see what definitions such as this mean before we vote on them, even if they're at the very least in draft form. I quite frankly have a lot of trouble voting on something when the government has no idea what it means.
Mr Fletcher: There was a draft of the regulations. What we're here to discuss today is not regulations but the legislation itself. The legislation is what needs to be passed in order for the regulations to have impact.
Mr Tilson: There's no draft regulation on this.
The Chair: I think you made your point clear, Mr Tilson.
Mr Curling: Maybe I should remind Mr Fletcher what this legislation is all about. I'm sure you must have read it over and over. This Bill 79 is to provide for employment equity for aboriginal people, people with disabilities, members of racial minorities and women. The only way we can proceed to have legislation that will affect them or to identify barriers that affect these people is to define who we are dealing with and whom we are going to draft this regulation for and protect.
You're saying to us, and not only that, the legislation properly states that the purpose of this is to reflect what the general community is like within the workplace. You're then telling us you have no definition of what an aboriginal workplace is. You tell me not to trust you, which is easy. Then what we want to trust is the definition. The definition lies in the regulation. We told you and your minister before that the fact is, it's extremely important to have the regulation. She emphatically stated that a regulation is not for debate or discussion.
We're at this crossroad now. How can we proceed to have an employment equity bill when we can't even define whom we are drafting this regulation for because we don't know what an aboriginal workplace is? I am saying to you, I advise you and I recommend that you go back to your minister and tell her, since she does not want to appear before here, that we're at a crossroad because we cannot put legislation in place because we have no definition. We don't know who we are drafting this about, so that an "aboriginal workplace" is within the definition of the regulation that you're telling us you ain't gonna show us, and that it's common practice that regulations will not be put forward until after the legislation.
I just want to ask the parliamentary assistant: Tell us, where do we go from here? What kind of regulation are we drafting?
Mr Fletcher: Okay, I'll tell you exactly where we go from here, Mr Curling. I'd suggest that we pass section 19.
Mr Chair, let me make it as clear as possible. That's my problem: I'm not making this clear as possible. The draft regulations that went out did have a definition that the aboriginal people were going to discuss. That's what's happening. Right now there is a consultation process going on between the two governments, the aboriginal government and this government, as far as what "aboriginal workplace" entails. If you read the draft regulations -- I don't know if you did or if you didn't -- then you would have seen it.
Mr Curling: But you just said to us that the definition of --
Mr Fletcher: It's a draft regulation. It has to be worked on through consultation. If we come out with a regulation right now, then that would be consultation in bad faith.
Mr Murphy: Oh, so all of this is consultation in bad faith? Make your arguments coherent at least, Derek.
The Chair: Mr Murphy, you're on the list; you might as well --
Mr Curling: You're bumping me, I presume.
The Chair: Yes, because I presume the comments are all related.
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Mr Murphy: I guess I have a problem in principle with the absence of a significant definition related to this part. The primary reason is the wording of subsection 19(1). It says that the government may, by regulation, vary the application of the provisions of this part. So without having any sense of what those powers are, what an aboriginal workplace is, with an imprecise definition in the regulation that could be changed at a moment's notice by the government in terms of what an aboriginal person is for the purposes of the act, no definition, as I said, of "workplace" and to whom it applies and to what it applies, the government can, by regulation, amend the act in relation to aboriginal persons and aboriginal workplaces. It strikes me, as a point of principle, I think, in terms of our responsibilities as legislators, to be fundamentally reprehensible.
Mr Fletcher: Now I know where you're coming from. I thought it was something serious. I didn't know it was principle.
Mr Murphy: I hope Hansard got that comment because there are various people who say that the NDP stands for different things, including No Darn Principles, but that's another thing altogether --
Mr Fletcher: At least it stands for something, rather than jumping across the floor --
Mr Murphy: -- with the exception of Mr Mills, of course.
Mr Fletcher: -- back and forth.
Mr Murphy: But as a matter of legislative principle, I think I have difficulty with the concept that the government or any government, no matter what stripe, can in and by regulation vary what is passed in an act. I have difficulty with that, regardless of which government does that. I have a problem with that.
I think I'd have more comfort, I guess, if we had some sense of what exactly the confines of "aboriginal workplace" are. For example, what was in the negotiation between your government and the aboriginal governments in their various forms? But we have no sense. We have just a "trust me" attitude. We have drafted the regulations dealing with many other parts and I think it was advisable to do that, to release those regulations. We do not have regulations dealing with this, despite your assertions to the contrary, nor do we have them, incidentally, with respect to the construction industry. I think in those circumstances there is a logic to standing this down until you have a better sense.
Your answer was: "Well, things are proceeding apace. Trust us. We hope to have an agreement at some point." I think it's important for us as legislators in all parties to be able to see what that agreement is before we pass the act, especially if it's your intention, as is here, that these regulations can change the application of the act.
The Chair: Mr Murphy, I was just about to say you've made your points.
Mr Murphy: Thank you, Chair, and I think you've noticed I stopped.
The Chair: Mr Tilson, you did make your points as well, quite clearly, three times. You want to go through this again?
Mr Tilson: No, Mr Chairman. All my points are new points.
The Chair: Are new on 19? Okay, go ahead.
Mr Tilson: I have a document called Consultation Draft before me. You've indicated that the definition is in the draft regulations. I just want to make sure I have the right one, because the document that I have looks like a true-and-false questionnaire thing, unless there are two sets of regulations before us. Is there another set of regulations?
Mr Fletcher: I don't know what you have.
Mr Murphy: What you've released is a draft.
Mr Fletcher: If that's what it is, that's what it is, then.
Mr Tilson: There's only one consultation draft that's been released that you know of?
Mr Fletcher: Yes.
Mr Tilson: Can you tell me where it is in here?
Mr Fletcher: Let me just say, when the consultation started, a definition of "aboriginal workplace" is something like, what do you think an aboriginal workplace should look like? That's the consultation process. That's how it's going as far as the aboriginal community is concerned, and the aboriginal community is responding to that.
As far as the draft regulations are concerned, when it talks about "aboriginal workplace" it does not have a definition, but the definition will be there when it comes back from the consultation.
Mr Tilson: Just looking at the true and false part of the regulations, do you anticipate that there are going to be several definitions of what an aboriginal workplace is?
Mr Fletcher: I don't anticipate that. I don't anticipate anything like that.
Mr Tilson: So there's going to be one definition.
Mr Fletcher: I'm not sure. The consultation process is ongoing. They could come up with two definitions that hit different aboriginal peoples. They could come up with one definition.
Mr Tilson: I can only repeat the shock of Mr Murphy. I concurred with his disbelief that we're proceeding with this subsection when we have no idea what it means.
The Chair: Any additional debate? Then I think we're ready to move to a vote on this section.
Mr Tilson: I'd like a recorded vote on this.
The Chair: Of course. All in favour of section 19, as amended?
Ayes
Carter, Fletcher, Harrington, Malkowski, Mills.
The Chair: Opposed?
Nays
Curling, Murphy, Tilson.
The Chair: That carries.
Section 21: There are no amendments. Any discussion on that section? I'm doing my best to go slowly. Do the members need more time?
Mr Murphy: Just one quick question to the parliamentary assistant: Am I to understand that the application of these two sections is such that once you come into the slower level, these time frames are basically the same as the time frames that would have applied, once the bill passes, to the same size?
Mr Fletcher: Once you're not subject to the exemption, then the other two parts come into play, the 12 months after the exemption ceases and the 18 months after the effective date. They apply.
Mr Murphy: I understand. I was just hoping I could go through it. Are these the same time frames as are required now of those same-sized employers once the bill comes into effect?
Mr Fletcher: Are they the same time frames of the same employers?
Mr Murphy: I see Mr Bromm signalling no, if that's helpful to you, Mr Fletcher.
Mr Fletcher: Go ahead, because I'm not sure what the question is.
Mr Bromm: Once the exemption under section 19 ceases to apply, these two time frames will come into play, either the 12 months or the 18 months, whichever is later, and those will apply regardless of the size. In the previous section, you refer to the implementation period links to the size of the employer, and this section doesn't do that. Once the exemption no longer applies, these time frames apply regardless of your size.
Mr Curling: Let me understand that. If they were exempted and two years have passed, as soon as the exemption is lifted, their 12 months starts at that time?
Mr Bromm: It depends on the later: either the later of the effective date, which is linked to the passage of the legislation, or the 12 months after the exemption ceases to apply. In your scenario, if it's two years later, then it's 12 months after the date they're no longer exempt.
Mr Curling: For instance, the act comes into place, and those individuals you've identified would be exempted, whoever they are. For two years they're exempted. Their exemption ceases. Their 12-month period then starts at that time.
Mr Bromm: Yes.
The Chair: Further questions? We'll move on to the vote then. All in favour of section 21? Opposed? That carries.
Mr Gordon Mills (Durham East): If I could make a quick comment, we had this discussion about regulations and everything as though we were doing something that was entirely out of order. I'd just like to remind the members opposite that in the building code bill, that bill was passed and the regulations for that bill came six months after the fact. I want to get it on the record: What's so unusual about having this after the fact?
Interjections.
The Chair: I don't want to encourage a debate. That's the problem when you allow for --
Mr Murphy: You've allowed the debate to be opened.
The Chair: This is true. He made a statement --
Mr Mills: No, I'm making a comment for them to answer.
The Chair: At some point I may allow the other members to make another comment. Moving on: section 22.
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Mr Tilson: I move that clauses 22(2)(a) and (b) be struck out and the following substituted:
"(a) may enter an employer's premises only after twenty-four hours notice of the intention to enter has been given to the employer;
"(b) may request the production for inspection of documents or things related to employment equity that may be relevant to the audit."
Mr Mills: They could burn the stuff. I can speak from great experience.
Mr Tilson: Mr Mills says you can burn the stuff. It seems rather heavy-handed to come down with the iron glove and simply, out of the blue, allow an employee to invade an employer's premises without notice, because that's what this is. In most pieces of legislation, at least notice is given. There may not be any cause for such an entry. It may be given voluntarily. Mr Mills can say that the material can be burned; I suppose that could happen even as the person is entering the premises. If you're going to get as distrustful as that -- there are good employers out there. Believe it or not, contrary to what Mr Mills says, there are good employers.
Mr Mills: We've got to look at it broadly.
Mr Tilson: Mr Mills has made some comments and I am prepared to deal with those. With respect to clause (a) --
Mr Mills: He wanted me to say something and then when I say something, I can't.
Mr Tilson: Mr Chairman, perhaps it would be more appropriate that Mr Mills speak after I finish.
The Chair: I'll put him on the list if he so wishes.
Mr Tilson: And then I would respond to what he has to say. To enable an employee to enter without notice is unreasonable, and there are good employers out there. If people are going to break the law, there must be other ways of dealing with it than simply allowing an employee of the commission to enter without any notice. Normally, when any audit is given, an auditor, whether it be a Provincial Auditor or any other auditor, comes to the ministry or any other place that's being audited and says, "Will you produce such-and-such documents?"
This section says "may enter any place at any reasonable time." Clause (b), the way the clause is phrased, gives unlimited rights to the employee of the commission to request documentation. The proposal of clause (b) suggests documents that are relevant. In other words, should the employee of the commission be allowed to receive anything, absolutely anything?
Clause (b) says no, they may only "request the production...of documents or things related to employment equity that may be relevant to the audit." Surely the government isn't saying they can request the production of everything, absolutely everything an employer has, that may indeed be irrelevant to an audit. That is the rationale of the amendment, which is in effect two amendments.
Mr Curling: I want to agree with my colleague from the Conservative Party. First, I would like to see us try to take out most of that confrontational and adversarial aspect of this bill, because it is a matter of cooperation to get equity in the workplace.
Yes, there is information within anyone's plan that they would not like others to see. Of course we want to bring in equity. Maybe it is completely irrelevant to the employment equity legislation. If you're going in there, as Mr Tilson said, even an auditor gives notice when they're coming, unless one is suspicious of some sort of irregularity. Here is a bill that sets out a plan and tells how you should bring about equity in the workplace, and here you are talking about coming by night, quickly, to say, "We need all this stuff immediately, to see your plan in order to make sure you are conforming to the employment equity."
I think we should try our best not to be adversarial and confrontational in this legislation. The fact is, if there are documents that you feel the individual --
Mr Gary Malkowski (York East): You're obviously really defending businesses there.
Mr Curling: Of course I defend business. You must defend employer and employee.
Mr Murphy: Someone's got to produce the jobs.
Mr Curling: The legislation must bring equity and not bring disadvantage to anyone. Where we identify inequities or barriers, we try to remove them. There's nothing wrong with defending an employer if there is some defence to be put forward. I'm saying that if there are documents or information that would be needed, what we can do is request that. There is a process; you can go through the tribunal and whatever you have here to get the necessary information.
I think it's a good amendment: 24 hours -- you're not talking about a week -- for that individual to prepare. There are productions in process; they may have to stop some areas in order to accommodate the inspection, so to speak. I feel it's an appropriate amendment and we should look at it that way and support it and ask the government to support that amendment.
Mr Murphy: I want to speak in support of this. Mr Mills raised his long and no doubt valuable experience as a Ministry of Revenue --
Mr Mills: I could speak for hours.
Mr Murphy: I'm sure he's run into difficulties. The question I have in the employment equity context is that the audit would have a couple of purposes: One is to provide information to the commission and the tribunal for the purposes of monitoring the movement towards progress under the act, and the second would be to monitor compliance, maybe arising out of a particular concern that an employer hadn't complied. One group that came before us, whose name I can't remember offhand, was concerned about the auditing process. I can't remember the name; perhaps Mr Mills, the parliamentary assistant, does, or others.
The question is really, in the employment equity context, what is it that's going to be changed by 24 hours' notice being provided? What is it that's going to be burnt, as Mr Mills suggested? I can't, off the top of my head, think of what would be changed so significantly related to employment equity. There may be some egregious human rights violations that occur, but that is dealt with by a separate complaints mechanism, and quite appropriately, and there are warrant procedures for surprise audits in that circumstance.
I'm not sure on the face of it what is changed. For example, I can see an auditor coming into a workplace at 10 o'clock in the morning and saying, "I want to see your files on this, this, this and this," and also there's the right to question people. Very little of that is going to take only a day. It will require a day to set it up, get the right people there. They have to provide access to counsel and all sorts of things related to what happens in the audit. In practice, you probably provide 24 hours' notice by the very nature of the kind of audit you're going to be conducting, unless you have some specific notion of what it is you're looking for; that you think there is a smoking-gun document in there. But if you have knowledge of a smoking-gun document, I suspect somebody already has access to it in some way, so I'm not sure the 24-hour notice will mean much one way or the other.
In that circumstance, in the spirit, as Mr Curling referred to, of making sure we don't have a confrontational bill -- I believe even the Business Consortium on Employment Equity, as it's called, makes that good employer-bad employer distinction. Part of the purpose, as we've been talking about, is to sell the bill, and I think the notion of notice as opposed to surprise audits is one that can assist in selling the bill and selling the import of the bill. The net effect, I think, is that this is an amendment worth supporting.
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Mr Mills: I'd just like to go to 22(2)(a), "may enter any place at any reasonable time." I beg to differ with my honourable friend opposite that auditors do have that right. I refer you specifically to the Fuel Tax Act and the Tobacco Tax Act. Both of those acts give people the jurisdiction to enforce those acts to do exactly this, "enter any place at any reasonable time."
I'm sorry to bring up my apprehension; I'll just give you one incident. We were talking about smuggling and how we're going to control cigarettes and whatever, a variety of things. I remember going down to the Harbour Castle; I was sent there to do an audit on a fellow who had an office in Harbour Castle, a very luxurious office, mahogany furniture, goodness knows what all. He said to me: "I appreciate what you're here for. It's almost lunchtime. Could you come back after you've had your lunch and I've had mine?" Being the reasonable sort of guy I am, I foolishly agreed. I came back at 1:30, and the only thing that was in the room was the telephone on the floor. You know, these things do happen.
Mr Murphy: That person would be exempted under this act.
Mr Mills: I'm not taking away from the fact that there are reputable employers; don't get me wrong. But there is a precedent set in acts administered by the provincial government that do give a person the right to enter a place at any reasonable time. You've got to look at what that means. "Reasonable" and reasonableness really are the crux of this matter. I tend to think that most people enforcing employment equity would, when it gets going, be reasonable people -- I have no reason to expect them to be otherwise -- so I can't support your amendment.
The Chair: Ms Harrington, would you like to speak to this matter?
Ms Margaret H. Harrington (Niagara Falls): I just wanted to ask whether the employers' advisory group had considered this and it was seen as a problem, and whether in any other statutes the same type of language applies as in here or whether it should be as the amendment put forward.
Mr Fletcher: If you remember, during the public hearings there was no opposition to this from the business community. It hasn't been flagged as being something they're really upset with. They're used to it with other pieces of legislation where auditors can walk into their place of employment.
Ms Harrington: So this would be in line with other pieces of legislation.
Mr Fletcher: This is in line with other pieces of legislation.
Mr Curling: Mr Chairman, if I may make a point of correction --
The Chair: Actually, I had Mr Tilson next on the list.
Mr Curling: Just on one specific point.
The Chair: Go ahead.
Mr Curling: You said there was no opposition to this part. Yes, there was. Maybe the business people haven't spoken to you, but I thought you were at the debate when Ms Witmer and myself were talking of the concern about confidentiality and all that. It was raised, and of course they had concerns.
Mr Fletcher: No, Mr Curling. Let me correct you. The item of confidentiality was raised, but not the item of an auditor walking in.
Mr Curling: So it is not right to say that --
The Chair: A bit of order, please.
Mr Curling: Yes. Tell him he will get time to comment.
Mr Fletcher: No. You're not saying the way it was, because that was not raised.
The Chair: Mr Fletcher, I will give you an opportunity to respond to that very shortly.
Mr Fletcher: Well, hold it, Mr Chair.
Mr Curling: No, you make your notes.
Mr Murphy: Exercise your authority, Mr Chair.
Mr Fletcher: If Mr Curling is going to be putting into the record something that is not true, then I'm going to respond to it.
The Chair: But I was going to give you the opportunity to respond.
Mr Fletcher: I'm saying it right now. He is putting something into the record that is not true.
Mr Murphy: He is out of order, Mr Chair.
Mr Curling: The business community expressed its concern about confidentiality and the information being released. That is one part. I'm not guarding for them, but they did express openly that there are confidential matters they would rather not give because they may have nothing to do with employment equity. Here you say they come any time and want to see the books and what have you. There are things in there that may have nothing to do with employment equity that they don't want the equity cops to see. That's within their rights.
Mr Fletcher: First, I agree, they did have a problem with confidentiality, but that has nothing to do with this.
Mr Murphy: Sure it does. Don't you know your own act?
Mr Fletcher: As far as the Employment Equity Commission conducting an audit is concerned, it is to make sure that the employer is complying with part III of this act, and that is the plan itself. It has nothing to do with their financial situation, it has nothing to do with their financial plans for the future.
Mr Murphy: Sure it does.
Mr Fletcher: All it does is make sure that it's complying with part III of this legislation.
Mr Tilson: Just a comment to Mr Mills's remarks; I'm always interested in Mr Mills's pearls of wisdom, although I don't always agree with them.
I can understand what you're saying with respect to the collection of tax, but surely this is the enforcement of the operation of a business. I quite agree that the collection of tax may be different, particularly if someone is breaking the law. You're right: I suppose the employment equity legislation could suggest that someone's breaking the law, but in the example you gave from your place of previous employment --
Mr Mills: One of many places.
Mr Tilson: One of many -- that had to do with the collection of tax and people's evasion or avoidance of tax. Surely that is quite different. In the situation that's contemplated by section 22, we're talking about businesses that are going to continue operating. If they want to continue operating, they'd better let this audit proceed; otherwise, they'll be closed down, or if they're not closed down, they will be simply not operating.
With respect, we're not talking about fly-by-night operations. We're talking about employers that intend to carry on business, and they are not all bad. You might even give me an example where there's been discrimination and the Human Rights Commission should come in; I'm sure we could all find examples of this just looking at the decisions of the Human Rights Commission.
But in these particular cases, they are not all bad; employers are not all bad. The intent of subsections (a) and (b) is that they not simply arrive all of a sudden but that the employer is at least given an opportunity to produce the relevant documentation. That's the intent, which I believe is quite different from the example you gave of people who are evading or avoiding tax. I hope you reconsider your position.
The Chair: I have Mr Murphy. You may want to respond after that or you may not.
Mr Murphy: No, I think I've made my points, thank you.
Mr Mills: I'll just be very quick. First of all, I'd just like to put on the record that of course there are hundreds and hundreds of employers out there who are very reputable people; likewise, in my career as a tax collector there were many, many reputable people. I'm quite used to this "reasonable" time. I used to go to people -- I've been burnt a few times -- and a person would say: "It's not convenient now. Can you come back tomorrow? The bookkeeper's away." Certainly I'd come back tomorrow. I view this part as a reasonable attitude. If you go there and the guy says, "Look, our plan isn't here but someone else is here" --
Mr Curling: He asked for 24 hours. He's not telling anything definite. He said within 24 hours.
Mr Mills: Well, without prolonging this, I just want to say that "reasonable" to me means you can come back tomorrow if it's not ready. Most people probably would do that.
The Chair: Are we ready to move to the vote? All in favour of the amendment? Opposed? That is defeated.
All in favour of section 22?
Mr Tilson: I have a question with respect to section --
Mr Fletcher: Are we voting?
Mr Tilson: Well, we're going into the rest of the section, and I --
The Chair: That's fine. Go ahead, Mr Tilson.
1730
Mr Tilson: This is a question to Mr Fletcher as parliamentary assistant. As we go through the process, we have a commission person who is going to proceed with an audit and is going to be obtaining certain documentation.
I think of examples where our friendly income tax people from our cousins in Ottawa -- currently our cousins, at least -- come forward and ask for income tax records. Normally, whether they come to an employer or, in my own personal experience, a law firm, there is a process where that can be challenged because certain documents may not be relevant. The only specific example I can think of is Revenue Canada coming to, for example, a law firm -- Mr Murphy may have experienced this -- and, if I recall, there is a process where all the documents that are obtained, that are going to be looked at or taken away or copied, are bundled up and there's a process for a court to make a decision. I'm fairly certain that this process exists.
If there's a dispute that certain documents may be completely irrelevant for the purposes of this audit and that they may reveal certain confidential information that has nothing to do with employment equity, should there be a process which would come under this part -- unless it's already there somewhere and I haven't seen it, but I don't think it is -- where an employer can challenge the seizing of documents before a court of law or a tribunal?
Mr Fletcher: Under this section, the only information the person who is doing the audit can require is to see that the plan is in compliance with part III of the legislation. They will not be going into any other information. There will not be any other information gathered; just to see if it complies with part III of the legislation, and part III of the legislation is specific about what the plan is.
Mr Tilson: The point of my question was that if the employee of the commission deems it's relevant, the employer may not think it's relevant. Should there be a process where that unilateral decision of an employee of the commission, his or her opinion, can be challenged? Is that somewhere else that I haven't seen?
Mr Fletcher: In section 25, "The Employment Equity Commission may apply to the Employment Equity Tribunal for a determination of whether an employer has complied with part III." That's what the audit would do.
Mr Tilson: But this is part IV.
Mr Fletcher: Part IV of what?
Mr Tilson: Of the bill. Part IV says the employee of the commission is going to take away all this stuff, all these documents which he or she feels are relevant. If it's in another section of the bill, I apologize for taking the committee's time, but should there be in a section, unless there already is one, that an employer can challenge before someone with respect to taking away all of this documentation that may not be relevant, that the employer may not think is relevant?
Mr Fletcher: An employer already has that right. They can get a court order, an injunction. They can stop. They can use the courts. As you said before, you weren't sure whether or not that process was in the federal; you're saying it may be.
Mr Tilson: With respect, I'm confident, because I've had it happen to me. I'm giving the example so you'll know, from the experience I've had, where some tax person has come into my office and wanted some client's file and I've said, "Sorry, you can't have it," and we sent it off to let some judge decide. There's a process in the legislation that allows us to pack it all up and let some judge decide whether or not the tax people should look at it.
Mr Fletcher: The tribunal will take a look at the information to see if it is relevant to the audit that is being conducted on part III of the legislation.
Mr Tilson: That isn't what my question is. I'm looking at section 25, which deals with part III, unless there's another section dealing with part IV.
Mr Fletcher: Did you just ask a question?
Mr Tilson: No, I'm just sitting here and waiting for you to consider a response to my question.
Mr Murphy: He did ask a question.
Mr Tilson: I did. Would you like me to repeat it?
Mr Fletcher: Is it the same question?
Mr Tilson: It's the same question I asked, yes.
Mr Fletcher: I gave you an answer.
Mr Tilson: No. You told me to read section 25, which talks about complying with part III.
Mr Fletcher: Yes, but the tribunal has power over the commission.
Mr Murphy: But not on this issue.
Ms Kathleen Beall: Perhaps I can assist by referring you to a couple of other sections of the legislation. If you look to subsection 36(2) of the bill, first of all, subsection 36(1) talks about, "No person shall hinder, obstruct or interfere with an employee of the Employment Equity Commission in the execution of a warrant or otherwise impede an employee in the course of an audit." I suspect you would think of it as, if you refuse to provide the material or the documents, you may be considered to be impeding an employee of the commission.
However, subsection 36(2) goes on to say, "Subsection (1)," which is the impeding of an employee in the course of an audit, "is not contravened if a person refuses to produce documents or things unless a warrant has been issued under subsection 22(5)."
If you look to subsection 22(5), that is within part IV and the enforcement. It's within the whole enforcement section. Subsection 22(5) provides for an employee of the commission going to a justice of the peace and obtaining a search warrant, and it will be a search and seizure warrant. What this suggests is that if an employer refused to produce the document, the appropriate course may be for an employee of the commission to go and get a search and seizure warrant by proceeding to a justice of the peace and meeting the test set out in that section before they would be able to get the warrant to get the materials produced to them.
Mr Tilson: I appreciate what you're saying, but my assumption is that under section 22, the employee of the commission is going to go off and get a warrant, and it's probably going to say, "Grab everything"; that's what it's going to say. The person doing the audit is going to say, "I think that set of documentation is relevant for the audit," yet the employer might say, "I don't think it's relevant." In other words, obviously it's "relevant" as deemed by the employee of the commission.
Subsection 22(5) that you've referred to talks about prior to that, where you go and get a warrant. My guess is that it'll be very general, say, "Seize everything." That may be an appropriate order; I don't agree with it, but it may be an appropriate order.
I'm talking about the stage where the employee comes up and says, "This is deemed to be relevant." The employer says that in their opinion, for any of a number of different reasons -- it could be confidentiality; it could be all kinds of things -- it has nothing to do with equity, the seizing and copying of those specific documents.
Shouldn't there be a body or someone the employer can go to to challenge the person doing the audit in terms of whether that person is correct that it is relevant? Otherwise, all the person doing the audit has to do is go off to a justice of the peace, get the warrant and say, "Okay, I want that filing cabinet." The employer may say, "Sorry, the bottom drawer isn't relevant," yet the person doing the audit who works for the commission says it is relevant. I can only repeat that there doesn't appear to be any provision in the act, unless you can help me, that enables the employer at that point to challenge what the person doing the audit is doing.
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Mr Fletcher: If you go back to part III of the legislation, the whole part, obligations, what is to be collected and what the plan is to look like, that is what an audit will look at, specifically to make sure there is compliance with part III. There should be no other information, which might be confidential, if it's looking at an employment equity plan, and that's what the commission will look at.
You're presupposing that at some point in time someone from the commission is going to be heavy-handed and try to get more out of a company. We don't see that with other pieces of legislation that allow for an audit, whether it's occupational health and safety, or the tobacco act, or anything else; there is not that heavy-handed approach. What the commission and the employee of the commission are looking for is the information relevant to part III of the plan, and that's all the information they should be able to gather. I know what you're saying.
Mr Tilson: With due respect, there was no inference on my part that these people are going to be heavy-handed. I'm simply saying that there's no vehicle for protecting the employer, who may have documentation that has nothing to do even with that specific employment. It may be something else that they're holding in trust for somebody else; it could be anything. It could be a law firm. It could be the example I gave of a law firm -- I'm trying to think fast on my feet here -- holding a client's files; that may be an inappropriate example. But there is no specific example I have seen where an employer may say it's inappropriate to seize the bottom drawer of that particular filing cabinet; that you shouldn't have the right to come and grab everything even though the person doing the audit thinks it's relevant.
I'm simply asking Mr Fletcher or his staff (a) is there another section that allows for the employer to challenge that, and (b), if not, would they consider it?
The Chair: I think they've already made reference to that through the answers.
Mr Fletcher: We have made reference to other pieces of legislation, and also freedom of information that employers are protected by.
The Chair: We'll move on to Mr Murphy.
Mr Murphy: I heard the answer, and I guess it addresses in part what you do face-on. If the auditor comes in, you say, "I don't want to give the information," and they go and get the warrant. The problem -- you might be able to help me on this -- is that generally warrants can be applied for ex parte, without there being any employer there to make representations as to what should or should not be included. That can be stopped by an injunction, but you're off into a big, long legal process which would be quite expensive.
Here I agree with Mr Tilson. Obviously, having a cheaper way to resolve it up front might be better for everyone involved, both the commission and the tribunal in terms of wishing to have their goals achieved without a long legal fight, as well as the employer, without the high cost of legal services.
There are two examples I can think of where it might be relevant. For example, if you're, I don't know, a pizza outlet or something like that where you're employing enough people to fit in under the act, your expansion plans in a geographical sense may be highly relevant information. That's going to be relevant to the employment equity plan, obviously, because that's going to outline your opportunities for hiring, but confidentiality is going to be important as well, because if you reveal to a competing pizza chain where you're going, that's probably about as important a set of confidential and strategic proprietary information as you can get. Really, I don't see a mechanism for dealing with that here.
The second circumstance is, for example, a law firm -- and it's one I have some familiarity with, having worked in one -- where it may also apply. The act will apply to some of the larger firms in the province, quite clearly. I could see an auditor coming in and saying, "I want to have access to those files," and some of the opportunities that may therefore be relevant to the plan might include staffing on certain large cases. How you staff and what you intend to do and in what time could be very relevant to the solicitor-client privilege that the law firm would have with its client, because how they're going to fight, when they're going to fight and with what is protected information. I don't see a simple mechanism here for resolving that.
What was pointed out as section 36 doesn't really go to that. It forces you into fighting over the warrant, and I'm not sure even that would settle the question under section 22 of what you could say might be confidential and therefore needs protection in a different way. That's just, "Is it relevant?" and if it is, bang. While as a rule they don't allow fishing expeditions on warrants, they're fairly broad in what they allow you to get.
I think Mr Tilson has raised a valuable concern. I hope the government will think about a way to look at resolving this issue -- I think it's an important one -- more cheaply than forcing everyone, including the government on behalf of the taxpayers of the province, to spend a lot of money on lawyers.
The Chair: I think we've had sufficient debate on this item and I think we're ready for the vote.
Mr Tilson: I'd like an opportunity to caucus this section.
The Chair: You'd like to stand this down, in other words.
Mr Tilson: Yes, I would.
The Chair: Is there unanimous support to stand this down?
Mr Tilson: I don't think the committee has any right. I have the right to caucus the voting of this specific section.
Mr Fletcher: He wants 20 minutes.
Mr Tilson: I want 20 minutes to discuss this with my caucus.
Mr Fletcher: That's what he's calling for. He wants a 20-minute division. He has the right.
The Chair: What that means, really, is that we're adjourning, because we won't be able to deal with this matter. We'll adjourn until next week. I should remind you that we're going to try to arrange for a subcommittee meeting next week.
The committee adjourned at 1746.