ONTARIO HUMAN RIGHTS COMMISSION
CONTENTS
Thursday 10 February 1994
Ontario Human Rights Commission
Employment Equity Commission
Juanita Westmoreland-Traoré, commissioner
Kumar Singh, executive director
Draft report
STANDING COMMITTEE ON GOVERNMENT AGENCIES
*Chair / Présidente: Marland, Margaret (Mississauga South/-Sud PC)
*Vice-Chair / Vice-Président: McLean, Allan K. (Simcoe East/-Est PC)
*Bradley, James J. (St Catharines L)
*Carter, Jenny (Peterborough ND)
*Cleary, John C. (Cornwall L)
*Curling, Alvin (Scarborough North/-Nord L)
*Frankford, Robert (Scarborough East/-Est ND)
Harrington, Margaret H. (Niagara Falls ND)
Mammoliti, George (Yorkview ND)
*Marchese, Rosario (Fort York ND)
Waters, Daniel (Muskoka-Georgian Bay/Muskoka-Baie-Georgienne ND)
*Witmer, Elizabeth (Waterloo North/-Nord PC)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Fletcher, Derek (Guelph ND) for Mr Mammoliti
Jamison, Norm (Norfolk ND) for Mr Waters
Clerk pro tem / Greffière par intérim: Bryce, Donna
Staff / Personnel: Pond, David, research officer, Legislative Research Service
The committee met at 1006 in the Trent Room, Macdonald Block, Toronto.
ONTARIO HUMAN RIGHTS COMMISSION
The Chair (Mrs Margaret Marland): Good morning. I would like to call to order this meeting of the standing committee on government agencies. We will continue our review of the Ontario Human Rights Commission.
EMPLOYMENT EQUITY COMMISSION
The Chair: We welcome back again this morning Ms Juanita Westmoreland-Traoré. Thank you for accommodating your schedule to complete your Tuesday afternoon visit with us, Ms Westmoreland-Traoré.
I have one request of the committee. Ms Witmer is on her way from Kitchener or Cambridge. She is behind an accident so she asked, if possible, whether the PCs could go third in rotation. Since Ms Carter's just catching her breath, shall we start with the official opposition?
Ms Jenny Carter (Peterborough): Sure.
Interjection.
The Chair: You're a prize anyway, Alvin, aren't you?
Mr Alvin Curling (Scarborough North): Normally. You've done this to me a couple of times, Madam Chair, but what a pleasure it is, again hopefully; I emphasize "hopefully."
Welcome, commissioner, again to the committee. I personally felt that, your being the last individual appearing before us during the hearings before we start giving instructions about the report, will be extremely helpful to us. I think your first presentation was extremely helpful.
One of the things I was delighted about was making it pretty clear what the Employment Equity Commission would be all about. There is confusion outside about whether one individually can complain to the commission and look after individual complaints. I think you made it pretty clear here that the commission will deal with systemic issues, more or less; we want to call it the cooperative approach.
We had asked and I had asked the commissioner of human rights when she was here yesterday -- she gave another excellent presentation -- about some of the overlapping areas. I just wondered if you could comment to us. I know that in your area you're concentrating very much in getting the commission on its feet and running. But there are concerns out there in the areas of pay equity and employment equity and all the other equity areas that there may be some overlap, and about whether they could have them streamlined. Do you feel that bringing all those equity issues under one would be helpful, or would it be back to the clustering or what we call the backlog happening there? Would you think it would be effective to bring the equity groups together under one umbrella?
Ms Juanita Westmoreland-Traoré: Thank you very much for your welcoming remarks this morning, both to the Chair and to Mr Curling. I will take it in the positive sense.
What I wanted to say is that I believe that because we do share common objectives, the Human Rights Commission and the Employment Equity Commission, we have to work closely together. There has to be a collaborative effort. Where possible, we will be able to exchange information and take approaches which are joint.
I know that under the Human Rights Code as it presently is, there is discretion for the commission to refer certain matters to other tribunals when it thinks it is more appropriate for them to be dealt with by another tribunal. I believe that may be a situation. They may use that clause that already exists. I do believe, however, that the work of the future Employment Equity Commission is quite important, quite vast. The mandate is quite specific. It relates to employment. It focuses on systemic discrimination in employment. We are also meant to give support to a great number of workplaces in Ontario.
In order to do this work effectively and to take into account, really, the needs of the employers and to work in a proactive way, we do need a commission and we do need resources dedicated to that. It would perhaps be putting some of the effectiveness of the employment equity objective in jeopardy if we were at this initial stage to go beyond the collaborative, the assistive, the formative and the exchange process.
I know from reading remarks by the minister that there is an effort to provide greater administrative integration, merging, common resources, common facilities to some extent. That is because of the needs of the present economic situation of the government and of the economy of Ontario. So we work within that context. At the same time, I believe we maintain the objectives, and the marshalling of the resources will be done in such a way as to be most effective.
In some instances, when you have a very large organization, you can actually lose. I know there's a principle of economy of scale, but on the other hand, in a very massive organization you can sometimes have duplication, you can have overlap. You have some of the downsides of the largeness: You don't necessarily have the same direct approach nor the same supportive approach to the different branches and the different aspects of the mandate. Mandates come into competition, priorities have to be set, and sometimes one of the newer and perhaps less developed initiatives does not get the attention it needs.
This initiative obviously needs to be developed, needs to be nurtured. Specialization is required, attention. For all those reasons, I would say that it is important we avoid duplication, but it's also important that the Employment Equity Commission go ahead and fulfil its mandate.
Mr Curling: If there is one thing we have learned from the Human Rights Commission, it is that if we haven't got the proper resources and don't use the resources that we have effectively, we could have the image of the commission being, if you want to call it, destroyed in a way. Right now the Ontario Human Rights Commission has been in a bad state in the sense of its image outside, but it's been improving over the last couple of years. I feel the commissioner presently there is doing her best to turn that around, creating a new commission now which is very important.
I should say that my party is very strongly behind employment equity and so is the leader --
Mr Rosario Marchese (Fort York): Hear, hear.
Mr Curling: -- sometimes to the disbelief of the government, which believes that we are not here for legislation and to have the best legislation in place.
Does the delay of the regulation itself create a problem for you as a commissioner as you develop and bring this commission on stream? Because it's been so long awaited, do you see that as, I won't call it an impediment, but does that delay pose a challenge to you?
Ms Westmoreland-Traoré: I think everyone is awaiting the dissemination of the regulations. Obviously, it is going to be very important to us, because the bill is going to be amplified by the regulations. I think in the normal course of events, regulations follow the adoption, the passage of legislation. In that sense, the regulations are not delayed. We are awaiting the regulations.
Mr Curling: Yes. We had the opportunity of having the minister here. We call it an opportunity because she seemed to think that actually coming before the committee was -- I don't know. From her, the impression I got was that it was rather unnecessary, that we could have gotten all the information from other commissioners, which we did.
I think she put some light to some of the questions we wanted to get answers to. We asked her about the regulations. As a matter of fact, she did not answer. I wish I had the Instant Hansard to see that I am wrong and she gave me a precise answer. What I got was no precise answer. The anxiety in the community is, when will this regulation be out? I won't ask you that, when the regulation will be out, because the fact is that it all depends on the government itself, when it wants to do this timely.
I gather that you were brought on board with your expertise, which is quite respected in the community. Is your part of the regulation in advising the government, or are you still in a sense amending and consulting to bring the final part of the regulation into being?
Ms Westmoreland-Traoré: We have an ongoing relationship with the minister. I, in particular, have an ongoing relationship with the minister, so I do advise the minister on questions on different issues as they are brought to my attention.
Mr Curling: It is with the minister now. In other words, you have done all you can. You're waiting for her in any way if there any more questions. What I'm trying to get at is that I'm not quite sure if the regulations are -- the fact is that the minister told me last year that the draft regulation is something we could go on, it's before us and it's fine. That was 1993. This is 1994 and I'm still getting from the minister that the draft regulation is still being consulted on, that people are still consulting on this. We want to get an idea when this will be in place. I'm not quite sure when this will be ready. Maybe I could ask it in this way. Do you think the regulation will be completed by this year?
Ms Westmoreland-Traoré: That's speculative. I'm not in a position to answer that question. I know that intense work is being done to complete the regulations. I know that some of the work is as a result of amendments that took place in third reading of Bill 79. I know that there were also submissions made to the minister, submissions up until October 29, following the circulation of draft regulations. So there is policy work, to my understanding, being done. I cannot tell you when the regulation will be adopted by the government and disseminated.
Mr Curling: Commissioner, do you employ people for the commission or is this employment done through the minister or so, those who are on your staff? Who does the employment?
Ms Westmoreland-Traoré: I have an executive director here. I think he is better in answering these questions.
Mr Kumar Singh: The staffing that we've got right now is the responsibility of the office of the commission to hire.
Mr Curling: Do you have adequate resources in personnel to do the job that you're asked to do?
Mr Singh: Most definitely no.
Mr Curling: Has that appeal been made to the minister? I presume that's where the resources, the funds, are coming from. Have you made an appeal to the minister?
Mr Singh: My appeal would normally go to the commissioner, who has regular meetings with the minister as well as with the deputy minister. I'm sure the commissioner has mentioned the lack of adequate staffing.
Mr Curling: Commissioner, you have done so?
Ms Westmoreland-Traoré: I have spoken to the minister on issues relating to the development of legislation policy. The question of staffing is not a question that I address in a specific way with the minister. The question of staffing and the administrative resources are the responsibility of the deputy minister, so those concerns are raised at the level of the deputy minister.
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Mr Curling: We have identified then that there are inadequate staffing resources in the commission, as the executive director stated. That is what I suspect too. It seems to me the minister's commitment to employment equity -- I think, as some fellow from England said, "Give me the tools and I'll do the job." I would hate to know that this strong talk of employment equity, which we all believe in, which I think all parties here believe in, and we fight for the proper resources -- it seems to me they are not forthcoming in some respects.
We would hope that the deputy minister, whoever gets those requests, whether the commissioner, the deputy minister or the minister, be told that there are not adequate resources available to do the kind of job they're asked to do. Because if at the beginning this is the case, can you imagine the enforcement aspect of employment equity, when they say, "It's a time of restraint and we don't have those resources"?
Ms Westmoreland-Traoré: Mr Curling, maybe I can just add one note that my executive director has passed to me, and that is that as a new initiative the commission is now being structured and the administrative documents are going through the administrative channels, so there are applications pending to be examined by the authorities within government. This process is being looked into. That's the position I wanted to make.
Mr Curling: Could I then request that we get a list of all those who are employed with the Employment Equity Commission, their titles, and as a matter of fact, maybe their breakdown according to their ethnicity? That's what it's all about, so that in our report writing, whether there is any recommendation or suggestion -- I'll be right up front with you. I think this committee is the one that can assist you in getting the job done, if the government will listen, because we'll identify and then make those recommendations and then we will make sure that the deputy, the minister or whoever should get those messages will hear them from this committee. Is it possible for us to get that this afternoon?
Ms Westmoreland-Traoré: We can information on staffing. Ethnicity I think is a question that the director will look into with the manager of employment equity, because we certainly need to respect the rules on that question.
Mr Curling: One of the things, then, is that employment equity is asking that of companies. I'm wondering if the Employment Equity Commission itself is respecting that. We cannot ask people to do things we're not ready to do ourselves. As a matter of fact, you should be so ready that we would have that available. I would like to have that to see how responsive you are to some of the things that are laid down by the government in the guidelines it has laid down for you to ask other companies to obey.
Are you saying that you may not be able to provide to me the breakdown of ethnicity or sex this afternoon? I would also ask that you break it down by sex, whether or not we could have that to evaluate.
Ms Westmoreland-Traoré: As I have stated, we will consult with the manager of employment equity and we will take direction from the employment equity services of the government. The employees in our office are members of the Ontario public service, so the rules of the government and Management Board secretariat apply.
We know that in our office at present we have approximately 18 permanent classified staff. These are persons who either were recruited by us through competition or who were seconded to our office, most recently from the Ontario women's directorate and again, lately, from the centre for disability and work of the Ministry of Labour.
As I understand it, the survey of the Ontario public service is done at point of entry. In other words, when a person is being employed, they fill out a self-identification questionnaire with regard to their gender, racial origin, whether or not the person has a disability, and aboriginal status.
For persons in our office, we have persons who are unclassified, who are temporary, which means that the information that has so far been captured by the employment equity branch and the OPS is partial, is not complete information. The information is not always current because our organization is a startup organization with a majority of temporary workers. There is a larger turnover in that situation.
When the information is presented, the information that can be disclosed -- we do have to respect confidentiality. This is particularly sensitive in a small organization. In a larger organization, confidentiality isn't such an issue because there are large numbers of people and people cannot necessarily be directly identified. In our organization, because of the smaller numbers, it is a greater issue and it's very important for us to manage the respect and dignity of each individual.
It's necessary to make those comments to you because we do need to manage the employment equity program with regard to our employees, and we have to manage all aspects of it, including the confidentiality.
I am quite confident that the information that is maintained by the employment equity management and the employment equity service will demonstrate that we have been following the principles of employment equity. Given that the information is partial because, as I said, of the turnover, because our organization was not surveyed in 1991 --
Mr Curling: Yes. Tell me --
Ms Westmoreland-Traoré: -- when the last survey took place --
The Vice-Chair (Mr Allen K. McLean): Your last question.
Mr Curling: I wasn't trying to be rude. I know the Chairman is going to cut me off very soon and I want to get this question in. Help me through this process. Am I asking the right type of questions in the sense when I ask about the breakdown in your Employment Equity Commission -- because that's the kind of questions I think people will be asking -- to give me the gender breakdown and whether there are disabled individuals within the organization? Are those the right questions I'm asking?
Ms Westmoreland-Traoré: When the commission is set up, the commissioner will be responsible for managing the employment equity legislation. The employment equity legislation and the regulations will be quite directive on the conditions for the workforce survey, the conditions for reporting, the conditions for monitoring the reporting. At this point, that is my principal concentration.
The process that you are asking me about now is a process which is internal to the government of Ontario and it's a process that is to some extent voluntary, because it's not based on legislation. This process is being managed by our office, but I don't think you can look to this process and then project and say this is the same process that will be used under the employment equity legislation.
Under the employment equity legislation, we will be clearly following the rules for when the workforce survey is to be done, how it's to be done, how it's to be updated, what is adequate in terms of the existing workforce survey and the workforce survey to be obtained according to the regulation.
All that being said, I'm pleased to tell the members of this committee that we have been following the employment equity principles as they are set out in the legislation with regard to hiring and hiring practices and seeking representivity of the designated groups.
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Ms Carter: Welcome to the committee once again. It does seem unfair to be putting you through this when you haven't even started doing what in fact you are going to do, so it's all a little up in the air, shall we say.
How do you see employment equity, when we are enforcing it, impacting on the workload of the Human Rights Commission? It's my impression that yours is a systemic approach and that any individual cases that arise from that would go to the Humans Rights Commission anyway. Do you see the systemic framework that will come into force with employment equity as significantly reducing the case load of individual complaints that the Human Rights Commission has to deal with?
Ms Westmoreland-Traoré: I believe that when the employment equity legislation is operative, and when the practices and policies are being reviewed in the companies and barriers are being removed, there will be a positive effect on the workplace. That is the whole objective and the commission will be there to provide information and support so that this can be done in an expeditious way.
Normally speaking, when this is being done, and when it's being done with the knowledge of the employees and with the participation of the unions, we would expect that there would be fewer complaints of systemic discrimination. That's the reason we're taking a proactive approach, somewhat similar to the pay equity legislation. We would think that by the operation there would be a reduction in the nature of systemic discrimination.
This bill does not say that individuals cannot go to the Human Rights Commission to complain, but we are expecting and hoping that because of the work of the Employment Equity Commission there will be better support in the workplace, there will be anti-harassment processes and there will be measures, training measures, career development measures and so forth, to remove systemic barriers, therefore removing the need, we would hope, for a good number of complaints.
Ms Carter: Of course there could be some complaints based on the working of employment equity, but I understand that a person cannot win a case on the basis of being discriminated against because of employment equity being in place. Is that the case?
Ms Westmoreland-Traoré: I know this is a subject that was greatly debated in this committee and I believe that you are right. The present legislation states that a person cannot make a complaint because positive measures or numerical goals are designed to assist the four designated groups. I think that is the limit of the protection and that protection was so defined so as to protect the essentials of the Employment Equity Act without going beyond what was necessary.
Ms Carter: I don't know whether it's fair to ask you this, but after all, this committee is discussing the Human Rights Commission. Do you think that the measures that have been undertaken in that commission to reduce the backlog and improve the functioning are going to be effective, the inside-out measures, as the commissioner describes them?
Ms Westmoreland-Traoré: Ms Carter, I do not have the answer to that question, to tell you honestly, because as commissioner for employment equity I can't really be involved in the workings of the Ontario Human Rights Commission. It's not my role. I wouldn't want to mislead this committee with information to which I'm really not a party.
Ms Carter: I won't press that. I just wondered if you had an opinion.
Ms Westmoreland-Traoré: I would like to, but it's not worth very much.
Ms Carter: We all have to function back in our constituencies. Public opinion expresses itself, obviously, as it should, and we get letters to the press and calls to our offices and so on. The biggest obstacle to acceptance of employment equity is people who say, and it was said in committee and it's being said everywhere, that employment on merit will be discarded. I'd just like to have, in your words, your answer to that accusation.
Ms Westmoreland-Traoré: I think that this is a tenacious question and it keeps coming back. We understand, working on this legislation, that employment equity is meant to remove the barriers. What has been the experience of many groups is that despite their qualifications, they're not being hired, they're not being promoted. Employment equity is meant to see that in a non-biased way, in an objective way, people's skills, qualifications, abilities will be assessed and they will be able to compete fairly.
It also means that the employers will be able to look at a broader pool of candidates, having removed these barriers. To me it is not a reality to say that employment equity removes the need to look at qualifications and to hire qualified people; it is really not correct.
Ms Carter: Of course nobody's forced to hire or not hire a particular person in a particular situation; it's just over time and in the long run that this will operate.
Ms Westmoreland-Traoré: That's right.
Mr Curling: That's why we say put that in the legislation.
Ms Carter: I understand that some firms which have been practising employment equity voluntarily have found that this has positive effects on the quality of their workforce. I wonder if you could enlarge on that.
Ms Westmoreland-Traoré: I think that it was very pleasing for us, but not unexpected, that one of the vice-presidents of the Royal Bank made a very strong statement supporting employment equity and saying that it's about managing resources well, about reaching new markets and that it was definitely a benefit to their company. We have a similar statement from Manulife, and I am aware of a statement also from one of the senior managers at Bell Canada who said employment equity meant that they were better in tune with their employees. This is something I also found to be a fine way of expressing the benefits of employment equity.
You know that in other jurisdictions senior managers now have said that regardless of the legislation, they would continue to use the principles and the practices, including numerical goals and timetables, of employment equity because it allowed them to have a diversified workplace, and managing diversity has become one of the hallmarks of good management, as well as putting in place supportive and qualitative measures.
Ms Carter: It is the case, I believe, that as the century draws to its end, a majority of people coming into the workforce are going to be in the designated groups. Obviously you start with 50% women and you go on from there, but I believe the figure is going to be something like 85%.
Ms Westmoreland-Traoré: Yes. We have tried to disseminate this information as well. In one of our last bulletins we talked about the demographic changes and how they underscore the need for employment equity, and what you're saying about women obviously is central to this whole initiative. Women now make up 45% of the total labour force compared to 35% in 1971. In 1991 almost 64% of women with children under six years of age participated in the labour force. This is very significant because we have this mindset that women are in the home or women with young children will leave the workplace and be at home, when it is becoming very quickly the reverse.
With regard to people of aboriginal status, in 1991 the census revealed a 41% increase in the aboriginal population compared to 1986. I know there are different explanations, but there is a significant increase, and with people with disabilities as well; not only is the proportion of people with disabilities increasing, and in the 1991 census it went up from 13.2% to 15.5%, but it is also that people with disabilities are more active in the workplace and are claiming their right to non-discrimination and to be fully integrated in the workplace.
Ms Carter: Do you think there'll be any problem with defining "disability," where to draw the line?
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Ms Westmoreland-Traoré: There is a considerable body of expertise at this point and I must say that this comes both from the professionals, the statisticians, but also the consumer groups themselves and they've made very helpful recommendations to us. We've had a working group working since last May on defining "disability" and also "severe disadvantage because of disability," and with our federal colleagues and they have been managing employment equity statistics since 1986 at least, under the legislative process, the legislative program. There are definitions that can now be used.
We also are aware that under the legislation regulation, it will be a question of self-identification. Once the definition is out there, the person then will feel free to say, "Yes, I am," or, "I am not."
Ms Carter: Which seems a very fair way of doing it.
It was suggested to us when a different committee was having hearings on employment equity, that job description now becomes a very important factor, that a lot of assumptions that have been made in the past about what qualifications were needed for a certain job were probably not realistic, maybe high qualifications, that kind of thing. Do you feel there is now an extra need for employers to be very precise about how they define what is needed for a particular job?
Ms Westmoreland-Traoré: Some employers they have already begun this work, defining what are the essential components of an employment. They've done it for the purposes of pay equity. So when we come now with employment equity, we can see the interrelationship. Employment equity will say, "Now that you've defined those essential functions, are the criteria that you are asking the criteria necessary to perform those functions?"
Height and weight criteria were one of those arbitrary barriers, and most of the police services at present across the country have replaced them with what the specific skills are: agility, strength, judgement, responsibility and so forth.
There's still a lot of work to be done, but that work again will be done in the workplace, jointly with unions or in collaboration with employees and with support from the commission.
Ms Carter: There has been concern about how advocacy groups could be involved with the commission and its work. Could you tell us a little about what you perceive the role of community organizations to be in the functioning of the Employment Equity Commission?
Ms Westmoreland-Traoré: I welcome that question because I believe that a commission, to be relevant, needs to have good communication and participation from all stakeholder groups. In that in employment equity we are striving to achieve better and equitable employment opportunities for designated group members, who by definition have been marginalized and disadvantaged, we will have to be especially attentive to ensure that associations from the designated groups are an active part of our process.
What we have done to date is set up a series of advisory committees at each step of our process, whether it was the consultation, public education, development of regulations. At different times, we have formed advisory groups which include representation from major stakeholders, from organized labour, manufacturing associations, chambers of commerce, small business organizations and the four designated groups.
Besides the work in the committees, we have also had a joint initiatives program which has allowed us to give some tangible support for the participation of the non-profit organizations in the work of our organization.
We have had and we have ongoing joint initiatives with the Alliance for Employment Equity; Skills for Change, which is a women's organization; the Organization of Black Tradesmen and Tradeswomen of Ontario; and the Women's Coalition for Employment Equity. We have with some specific organizations, such as the Filipino business association and the Korean Canadian Women's Association. We have with the United Food and Commercial Workers, International Ladies' Garment Workers' Union and so forth. We have had in the past as well with the women's professional associations, CAWEE, the Canadian Association of Women Executives.
In the approach to joint initiatives we've had input not only, I would say, from these representative organizations but from their networks across the province, and these include organizations such as Persons United for Self-Help and Disabled People for Employment Equity, and they've made very concrete reports, including materials, videos, posters and documents which are of assistance.
One of the objectives of the joint initiative program, besides the education and awareness raising, is also to help foster linkages between stakeholders so that some of these initiatives are joint between employer groups and persons with different designated group status.
Ms Carter: This is specific outreach, but then there's the question of broader public education. In our discussions of the Human Rights Commission, there have been queries of the fact that the educational functions seemed to be damped down at one point, although I believe that is being reactivated now. What role will public education, as such, play in the Employment Equity Commission and what are you doing about that?
Ms Westmoreland-Traoré: Public education is one of our specific mandates under Bill 79, "To educate the public about employment equity." This is paragraph 41(1)6.
We've also received a very direct mandate from the government to engage in public education, as well as setting up the commission. Even before legislation we're working on the public education strategy. At present, we are doing general public education through our speaking and participation in many conferences, professional community conferences. We're working with the community college network to develop specialized courses in employment equity within the community college system.
We also are at present through the joint initiatives, which I've mentioned, but in particular we're working with trainers from the different organizations, including companies, and these trainers, during the workshops they participate in, have a chance to be familiar with materials that have been developed specifically for teaching employment equity and have the chance of exchanging with other trainers so that they can form support networks.
Now so far 400 of these trainers have participated in our workshops and they then go out in the different areas. We've been to 15 cities. I believe I have a summary which I can leave with the committee. They go into their different workplaces, unions and community organizations to reverberate what has been received from the office.
Ms Carter: Thank you very much. Those are all the questions that I have.
Ms Westmoreland-Traoré: You're welcome.
Mr Allan K. McLean (Simcoe East): Good morning. Welcome back.
Ms Westmoreland-Traoré: Good morning. Thank you.
Mr McLean: The construction industry in Ontario has an exemption, doesn't it?
Ms Westmoreland-Traoré: The construction industry can have a specific regulation -- it is provided for in our bill -- because there are, as you have mentioned, special features to the construction industry: the seasonal nature, the small size of the majority of construction companies, the high rate of turnover, the specialization, the union hall process for employment. All of these special features mean that it is appropriate to have special requirements in the construction sector, and this is being developed. Possibly you're referring to that.
Mr McLean: Right. The nature of Ontario's agricultural industry leads to pronounced seasonality in employment patterns. This seasonality, combined with clause 3(4)(b) of the act, means the small employer exemption, subsection 6(3), doesn't work for many farm employers.
Ontario has recognized the uniqueness of the farm workers in several instances, including the Employment Standards Act, the Occupational Health and Safety Act, and most recently the Agricultural Labour Relations Act, 1993. The Ontario federation has written to the minister, asking that Bill 79 similarly recognize the particular character of the farm workplace and farm employment.
The minister recently has committed to exploring regulatory measures to address agriculture's concerns. Are you going to make them an exemption as well, as we have done with the construction industry?
Ms Westmoreland-Traoré: I think the authority resides with the Lieutenant Governor in Council, meaning the cabinet. I believe that the Ministry of Citizenship presently is in the process of developing regulations specifically for seasonal workers, and it may be that agricultural workers are a specific set of seasonal workers. I understand this concern is being addressed, but I don't believe that it will be, if you wish, the responsibility of the commission. We will then manage whatever regulation is set forth by the government.
Mr McLean: Was it the government that changed the regulation for the construction industry?
Ms Westmoreland-Traoré: The government is preparing a regulation specifically for the construction industry and I understand that it is now in the process of preparing a regulation specifically for seasonal workers. It may be that there is also a specific regulation for agricultural workers.
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Mrs Elizabeth Witmer (Waterloo North): I may repeat some of the questions. Unfortunately, this winter and driving from Waterloo have not been very good. There was black ice on the road and there was a nine-car pile-up on a bridge today, so it's really not been good. I apologize if I repeat questions that have already been asked.
Ms Westmoreland-Traoré: I'm glad that you're here safe.
Mrs Witmer: I am too. Once I got going -- I did drive.
Anyway, I would hope that you would support the issue that's just been raised by Mr McLean. I know the agricultural community is quite concerned about the possible impact of this legislation because of the number of seasonal workers that various farmers hire throughout the course of a year, simply because they often can't find people within the province of Ontario who are able to carry through and do the work that's needed.
I think we went through this before, but I'd like to hear more of a response. The Employment Equity Act as it is and as it was during the deliberations was a cause of concern, particularly a concern that was expressed time and time again by the employer community because of the potential overlap between the Ontario Human Rights Commission and the Employment Equity Commission. Do you share this concern that is being expressed and has been expressed, and would you indicate to us why that will not be the case?
Ms Westmoreland-Traoré: I think employment equity has been a long time in coming. I think the experience of persons in the designated groups has been that they require a specific remedy and they look forward to the establishment of the Employment Equity Commission with a mandate in order to address these questions in a systemic and proactive way.
I believe that while we share common objectives, the Human Rights Commission and the Employment Equity Commission, we will be able to work in such a way that we do not produce overlap. I think there's significant and sufficient work for both of those commissions to do. Our commission will focus exclusively on employment, will focus exclusively on systemic. We will not be concerned with complaints from individuals, and we will work also with a mandate to provide assistance to all stakeholders in order to participate in this process and have effective employment equity.
Mrs Witmer: When you say you will not be responding to complainants, what exactly is it that you mean?
Ms Westmoreland-Traoré: Under the Ontario Human Rights Code, the person or association that alleges discrimination would approach the commission and file a complaint. The commission has the responsibility of processing that complaint -- I know the commission has outlined the different steps that it uses -- and further to refer, depending on its decision, that file to a board of inquiry.
Under the Employment Equity Act, an individual who feels they are the subject of discrimination would still go to the Ontario Human Rights Commission. Our work is to see whether or not the legislation is being respected, which means, has the initial information and education been done in the workplace? Has the workforce survey been completed? Has the employment systems review taken place? Is the plan developed in compliance with the legislation? Are the certificates filed? Is progress being made towards achieving employment equity?
Those are the types of questions that we will be asking, and those are the type of questions that our officers will be looking at in audit situation. The Ontario Human Rights Commission does not have the function to audit. So our work is different. We will not be investigating individual complaints. We will be looking to see whether the different activities, as they are foreseen here, are being completed.
Mrs Witmer: I appreciate what you said. How then will complaints arrive at the tribunal?
Ms Westmoreland-Traoré: An individual can complain to the tribunal. I hope that I can perhaps dispel some misunderstanding. I'm not here speaking on behalf of the Employment Equity Tribunal; I'm speaking on behalf of the commission. I'm saying that in the first instance, the commission will not be receiving complaints. An individual may go to tribunal on, I believe, two specific grounds. One is that the employer is not following its plan; or two, the employer is not achieving results.
The individual or association will not be going to tribunal, as I see it, because the education, the certificate, the plan, does not conform. All of that activity will not be subject to an individual complaint. It will be the responsibility of the commission to see if that is being done. I don't know if you want me to continue with this. It's the responsibility of the commission to see if that is being done.
If the commission is of the opinion, through an audit, because of its audit activity, that one of these requirements under the bill is not being completed, then the officer of the commission will attempt in the first place to achieve a settlement, because the idea is to have support and progress towards employment equity. That is what is the first objective. That work will take place between the officer and the workplace.
If there are disagreements between the parties, because this is a joint process, the parties can go towards the Employment Equity Tribunal for resolution. Following the first effort at conciliation, if the employer does not agree, then it would go to commission. The commission would decide whether or not an order was appropriate. The workplace, if it is not in agreement with that order, would then go tribunal. So that is the scheme, as we see it, in the employment equity bill.
Mrs Witmer: Are you suggesting, then, that the only cases that would go to the tribunal from the commission would be, probably, the employer?
Ms Westmoreland-Traoré: Unions could go too if there were disagreements.
Mrs Witmer: What about individuals?
Ms Westmoreland-Traoré: Individuals can go to tribunal on those two grounds, one ground being non-compliance.
Mrs Witmer: But they wouldn't have come through the commission.
Ms Westmoreland-Traoré: No, they wouldn't come through the commission.
Mrs Witmer: It is possible, then, that if an individual felt that inappropriate behaviour had taken place, they could apply both to the tribunal and the Ontario Human Rights Commission and simultaneously you could have two bodies responding to their complaint?
Ms Westmoreland-Traoré: The nature of the complaint, I believe, is different. The Employment Equity Tribunal will look to see if the planning process is unfolding as it should, which is not the individual's situation. I may feel the subject of discrimination, either intentional or systemic. Many people don't formulate their complaints in that way. But the work of the commission tribunal will be focused on the systemic. As I said, in the overall, it is primarily a proactive type of role, as opposed to responding to complaints.
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Mrs Witmer: Yet there is the legitimate concern that an individual could go to both bodies and ask for some assistance. I'm just a little concerned, because we've seen the Ontario Human Rights Commission expand its mandate and seem to get involved in things that originally might not have been within its jurisdiction. How will we know? What guarantees, what mechanisms will be in place to make sure that you don't have two bodies trying to track down a complaint that's been put forward, which would take a lot of time and effort on both parts?
Ms Westmoreland-Traoré: I cannot tell you how the Ontario Human Rights Commission will manage complaints dealing with systemic discrimination in employment. I know that the Employment Equity Commission will have to decide in the cases as they appear before them. I know, however, that one of the concerns that was raised by community groups, consumer groups, equity-seeking groups was that they were very insistent that protection under the Human Rights Code should not be limited by the Employment Equity Act. I think that is one of the objectives this bill has attempted through amendment to conserve and maintain.
Mrs Witmer: After I have heard your explanation as to how the commission will function and its role, how the tribunal will function and its role, and then we know what the role of the Ontario Human Rights Commission is as well, I guess I still believe and support some of the individuals who appeared before us who suggested that responsibility for discriminatory complaints which are going to go to the tribunal should be transferred to the Ontario Human Rights Commission. In many ways, I do see a duplication of effort. I know I asked you this question the other day, but do you still see the need for a separate tribunal? I'm not convinced that it's absolutely necessary and I see it as a duplication of effort.
Ms Westmoreland-Traoré: Just with regard to the complaints, I hope I'm not repeating myself, but what the Employment Equity Commission will be looking for and what the Ontario Human Rights Commission will be looking for are not necessarily the same.
The Employment Equity Commission will be looking to see, "Is this employment equity plan in place and is it in compliance with the legislation and is it being achieved?" as opposed to looking to see in an individual circumstance whether or not this person's rights have been violated. The object of the two is very different.
Mrs Witmer: I understand that.
Ms Westmoreland-Traoré: That's right. The functioning and the purpose is very different between the two.
Mrs Witmer: That's right. I can understand then the role of the commission, but what I can't understand and where I see the duplication of effort is in the role of the tribunal. If you are going to have a discriminatory complaint, you could transfer that to the Ontario Human Rights Commission, because in many ways the tribunal is going to be a duplication of effort. I'm wondering why that mechanism wasn't put in place. I understand your role and the role of the commission, but I do see some duplication in the other area.
Ms Westmoreland-Traoré: I believe there is some effort being made at the level of the tribunal to, in the first instance, unify the administrative processes, to collocate, to use resources jointly in certain instances, to integrate the information technology and what not. That concern, I believe, is shared and there is some pragmatic operational work being done to achieve good, cost-effective use of resources.
Mrs Witmer: I'm glad to hear that. I have one more question. The definitions for disabled persons are different in the Employment Equity Act and the Ontario Human Rights Code. Why are they different?
Ms Westmoreland-Traoré: The definition of "person with disability" under the employment equity bill I believe is the result of policy work, the result of consultation, the result as well of the experience of our federal counterparts under the employment equity legislation, so that definition is put forth because we understand it to be practicable, workable and to respond to the needs as they've been expressed for the purposes of planning and having people self-identify in the workplace.
The Ontario Human Rights Code is a code which is put in place to provide equal treatment and to provide protection against discrimination on the grounds of disability, and the definition has evolved over the years. I believe the definition for the purposes of the Ontario Human Rights Code and remedying individual and systemic cases as they are presented is the result of that historic judicial process.
Mrs Witmer: I wonder if there are going to be some differences in the implementation of the laws if you have different definitions within the two pieces of legislation.
Ms Westmoreland-Traoré: When the commission is set up, I know there will need to be discussion because this is a common concern and the operations of the Employment Equity Commission need to be reasonable and be seen to be reasonable. I believe this will be an area for further discussion between the commissions.
Mrs Witmer: Thank you very much for coming back. I very much appreciate that and I wish you well in your endeavours.
Ms Westmoreland-Traoré: Thank you very much, Mrs Witmer.
Mr McLean: This process has been enlightening to a lot of us. When we look at some of the statistics that were given to us yesterday, such as 116,000 inquiries or letters to the Human Rights Commission, that's almost 10,000 a week, well over 1,500 every working day. There's got to be some concern with regard to who evaluates those individual inquiries or letters or phone calls. I'm curious to know your observation on it. The Human Rights Commission certainly has a job cut out for it. How do people decipher which ones they think are legitimate and which ones may not be? What's your observation on that?
Ms Westmoreland-Traoré: It is quite daunting, as you have said. I think that people's understanding of their human rights and their protection against discrimination has grown and deepened and that there are different grounds now for discrimination that have evolved and are now protected by our legislation. I think what is going to happen over time, hopefully, is that there will be a culture in which people will react in their own self-interest and say, "Yes, protecting equity is an important function because it goes to the quality of all of our lives, and therefore the need for a very active and very important structure, in order to protect these values and rights, will always be present but perhaps there will not have to have such an overwhelming number of inquiries."
I guess to some extent some of these inquiries, and it depends on the information you're using, are inquiries for information and others are complaints, but I have a sense that as we talk of smoking, as we talk of use of alcohol, as we talk of the environment, there are going to be changes in our culture and in our attitudes. I think this is coming about to some extent.
Mr McLean: Don't you think we have brought a lot of this on by ourselves? I wanted to give you an instance just yesterday in my constituency office, where my receptionist returned a call and the individual said to the receptionist, "You have raised your voice to me." That could be a case, for the individual, of discrimination, couldn't it?
Ms Westmoreland-Traoré: I want to respect your question. I know that the Ontario Human Rights Commission has intake officers who are trained and that they do have different processes to follow. I want to respect your question and say that it is indeed a question for management and training. I understand that all cannot be dealt with at the individual level that you're bringing about. I believe that some of the expectations of persons for the protection of their rights will come about because of the systemic action that we will be doing at our commission and the public education, which will lead people to have a better understanding of what their rights are and how they are to be protected.
The Chair: Thank you very much for your appearance this morning, Ms Westmoreland-Traoré.
Ms Westmoreland-Traoré: It was a pleasure, Mrs Marland, and good luck in the rest of your deliberations.
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DRAFT REPORT
The Chair: The rest of this morning we will devote to the drafting of the report on the Ontario Human Rights Commission. Would you like to make some comments, Mr Pond?
Mr David Pond: No, that's fine.
The Chair: All right. Mr Pond is going to wait for the direction of the committee members. Shall we just have it as an open-floor discussion?
Mr Curling: I think that would be appropriate because one of the things that we were depending on -- I want to recognize the fact that the Hansard people are so overwhelmed with work --
The Chair: We do have a choice, I think. We have a choice of whether or not we do the drafting on the record.
Mr Marchese: I don't mind.
The Chair: It's up to the committee whether you want to do it on the record or have Hansard finish with Ms Westmoreland's presentation, and then go into the drafting.
Mr McLean: I think it can be very brief. I see nothing wrong with it being on the record. From my point of view, I would like to see what David Pond has assembled, what he feels some of the ideas are that have come across. I want to be very brief as far as I'm concerned. One of the major concerns I have is the very issue that I just raised at the last. Are these 116,000 calls or inquiries -- people are desperate out there and they'll do anything. I think there's got to be clarification of how these inquiries are handled and how they should be handled. It's a great concern.
Mr James J. Bradley (St Catharines): In general, and it's not as helpful as it might be, it seems to me what we're endeavouring to do is to bring forward a report which will make recommendations which will make the Ontario Human Rights Commission an effective body. There were several presentations made that had suggestions in them, some of them that I thought were extremely good suggestions; we had some responses from people.
It seemed to me what emerged from this -- I don't know if there's a consensus; the government members haven't spoken yet and perhaps they feel a consensus in this; maybe they don't -- was the goal being that the commission deal with legitimate, genuine cases in an expeditious and effective way, and that's very much overall. I can elaborate later on but that's overall, it seems to me, what we were looking for in the commission, that it be effective, that it deal with genuine and legitimate cases in an expeditious manner.
Concerns, it seemed to me, were expressed about frivolous complaints coming forward which caused great agony for those who have been accused and caused great difficulty for the commission, because it has to spend a lot of time on these kinds of complaints, at least to this point in time. One of the presenters to the committee indicated that it was certainly his opinion that the gatekeeping function was one which hadn't been carried out as well as it might have, and that with appropriate gatekeeping, that is, the screening of these to determine whether or not they are -- I understand it's not easy -- legitimate would go a long way to improving the performance of the commission. It seems to me we're in a context today of simply not being able to add huge numbers of staff and a lot of financial resources.
Every government, I guess, when it has a problem of this kind, that feels those resources would be helpful, that would have been the way it would have been approached in good economic times. We're not in good economic times and it seems to me now we have to look at how we can make it more efficient.
I think that overall the thrust is to make it a more effective, fairminded commission as opposed to being a bit out at sea at the present time, not necessarily because they want to be in that position but because there hasn't been effective gatekeeping and it just hasn't operated as efficiently as many people would like it to.
That's a general comment to start and I guess we could comment further in some detail. I don't know how the government members feel on that, or the other members.
Mrs Witmer: After listening to the presentations that have been made by all parties, it's become obvious that the concern that dominated prior to this discussion is still there, and that is that concerns are not being dealt with in a timely manner and also that inappropriate cases are appearing before the commission.
I would agree. I think Mr Bradley has expressed well the direction that we need to focus our attention on, and that is to ensure that with the limited resources we have, both financial and human -- I think we need to emphasize the fact that they will not be increased; in fact, if anything, we need to decrease those resources and use them more efficiently. Somehow we need to ensure that only those cases which meet certain criteria should be taken on as a responsibility by the commission.
I feel that right now there are cases sitting there that should never have arrived in the lap of the commission, so we do need more effective gatekeeping, if that's how we wish to refer to it. We need a more appropriate screening process and then we need to make sure that once a case has been accepted, it's dealt with in a timely and expeditious manner. That simply hasn't been happening, and we need to make sure. There were some presentations that gave some excellent suggestions as to how the issue could be facilitated and dealt with in a more timely manner.
Mr Marchese: I agree in general with what the other members have said. In the drafting of the report, I personally, and the others should speak for themselves, say that we should comment on what the Human Rights Commission has done because I personally believe that these efforts are positive, that the internal organizational changes it has described, in my view, are very good, positive, useful things as an important beginning to deal with many of the other problems.
Many of the presenters here felt that as much as they were good, much more needs to be done to be able to deal with the ongoing problems that the other members have identified and that the presenters keep on identifying in presenting claimants.
Clearly what we need to do, what David Pond has to do as well, is to bring many of the suggestions that individuals have made that build on the internal organizational changes that have been suggested as a way of getting to the problem. We need to identify them so that when we come back we can comment on those specific suggestions again.
I personally want to recommend that the minister proceed to establish a mechanism and a time frame for implementing the recommendations of the Cornish report. I would like to see that and I would like to see a response from the ministry, with respect to that, how it would deal with that recommendation. I don't know what the other members of this committee want to say to that.
As they move towards those recommendations, I also that there are other interim measures that need to be taken as well. That may mean amendments, obviously, in the meantime to allow complaints to be referred directly to a hearing without a protracted investigation by the commission. Where a particular investigation is not required or where a complainant is able to proceed with the assistance of advocacy organizations -- we've seen many advocacy organizations here in the last few days that said, "We're ready; we are helping them and we're ready to represent them," -- they should be moving to a hearing without having the commission have carriage of the complaint throughout the whole process, which is what I think Mr Bradley was talking about, that gatekeeping role. I think it's part of this problem.
These are useful interim things that we need to look at that I think will help the commission deal with some of these protracted cases that need to be dealt with much more expeditiously. The present system simply doesn't allow for that in spite of the organizational changes they've spoken to. You will still have cases that will drag on for a long time. We need to look at ways of reducing that time frame so that it doesn't become injurious or deleterious to the individual complainants. So we need to look at that.
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I think we should look at changes that say that where the commission chooses to relinquish carriage of the complaint to the complainant, or where the commission is unable or unwilling to carry forward the case on a timely basis, as set out in section 38, the board will give carriage to the complainant. We should be looking at measures like that as a way of dealing with those cases that we all recognize are simply dragging on too long. These are my suggestions and I'm looking forward to hearing others as well speak to this.
Mr McLean: We're all saying the same thing.
Mr Curling: Actually, I agree with Mr Marchese in the respect that he outlined and the direction we should give in the writing of the report. I will emphasize, however, that the review of the code and amendments to the code is something that should be acted upon, because it has been mused about that this is happening but we're not quite sure when. The direction should be that people are concerned the amendment should come forth and be acted upon.
There was a strain through the hearings that stated very much so that all human rights, all individuals, should be protected. Yes, there are designated groups which are more disadvantaged than the others, but that balance itself, that we don't put other people at a disadvantage, that people's rights overall should be protected, is raised from time to time here through the Fair Rental Policy people, through other areas, ones who feel that they've been discriminated against, how jobs have been advertised, the feeling that people's rights are being denied when they are shut out, and eliminating barriers but also that while eliminating barriers, other walls are not set up for people to participate so their human rights are not being discriminated against.
On the Cornish report, I fully agree with Mr Marchese that all these reports that are out there, especially the Cornish report, should be responded to by the minister, because it seems to me that the Human Rights Commission has taken some of those recommendations and is implementing them, but formally it would be helpful to know where the minister of the government stands with that report.
The Employment Equity Commission plays a very important role in human rights. They also should start making some decisions on that. Comments were made that it is still hanging in abeyance or when that should happen. I think the report should reflect that people are anxious about that, in having that on stream.
It was very clear that people were saying that there should be more emphasis on the systemic unit approach to eliminating discrimination, without reducing -- let me make it plain they all stated that -- the individual complaints area, because that is important, but the expansion of and more emphasis on systemic discrimination.
The last point I'm going to make, and I want you to hear this pretty clearly, as Mr Bradley stated, is that it is not a reduction of resources but to use the resources within the Human Rights Commission and the Employment Equity Commission more efficiently. It was very clear that the employment equity people stated they didn't have enough resources. I think it is quite possible to look at whether they're using those resources effectively and whether the Human Rights Commission is using those resources effectively.
It is quite possible that we may need more resources, but the fact is that we should be very careful that the report reflects that we are saying we must reduce those resources but also use those resources more effectively. Those are the directions that we will be taking, and we hope the report reflects those comments.
Ms Carter: I think we heard the word "evolution" a lot when we were listening to the minister and the commissioner; that in fact changes are taking place but that they are, as we were told, from the inside out, not drastic restructuring. Probably we should recommend that this process continue and that we see what the outcome of it is. There might be a time in the future to decide whether this process has been adequate or whether more drastic solutions, as may be suggested in the Cornish report, are going to be necessary.
Having said that, and I agree with what people have said before, there still maybe is a problem dealing with case load and maybe more attention needs to be paid to the process of dealing with complaints and whether more changes could be made to that.
There is a question as to whether some of the groups, such as the Centre for Equality Rights in Accommodation and the Advocacy Resource Centre for the Handicapped, and so on, which presented, should have more access to the commission because they seem to have a lot to offer as to whether they could be somehow better integrated. We also saw a concern with public education, that perhaps not enough was being done in that direction, and again we heard that initiatives are being made but I think we need to make sure that those are sufficient and that this avenue is sufficiently explored. For example, could community organizations assist in achieving that end of public education?
Other people have suggested there needs to be a more systemic approach to some of the problems the commission deals with, particularly racism, and maybe that should be pursued further.
We heard a lot of comments on whether there is a bias on one side or the other, the complainant or the respondent. What the commissioner said, that we're getting the complaints from both ends and therefore maybe neither of them were founded, is quite possibly true, but I think this issue needs to be addressed in the report.
Of course, there is the need for the commission to work in with employment equity and for the two to mesh properly, which connects up with the issue of how closely the human rights board of inquiry, the Pay Equity Hearings Tribunal and the Employment Equity Tribunal should work together. We've been told that there is an evolution taking place in that respect, that they are pooling amenities and working together. I think that's something where we can see how that evolves and maybe in the future a judgement could be made whether that was sufficient or whether more needed to be done.
Mr Marchese: Just as a quick point, as well, in matters of accountability we might want to look at that. We might look at mechanisms as to what extent we can make the whole process accountable to everyone, which would be to respondents, which would be to complainants and to the general public, and presumably ourselves as part of it, although we directly have responsibility to them, so presumably they're accountable, but we should look at mechanisms for greater accountability with what's happening with the commission.
Mr Curling: I fully agree with that, because that was raised from time to time, whether the Ontario Human Rights Commission should be reporting to the minister or to a legislative committee. That was raised and that should be reflected too with regard to accountability, as Mr Marchese said.
The Chair: Any final directions to Mr Pond? Do you have any questions, Mr Pond?
Mr Pond: Mr Cousens asked me to mention that he couldn't be here today, but he wanted to have some input into the final report.
Mr Marchese: We can't accept it.
Mr Pond: I just thought I'd put that on record.
Mr McLean: Forward it in writing.
Mr Bradley: In regard to the report writing, if we're still on that issue, I would like to see certain issues dealt with and then the committee, when it looks at Mr Pond's work, will decide what wording it wants, I suppose. There were some issues that were raised that I think should be reflected in the report. In talking about the number of cases that the commission deals with, one of the people who put forward an idea was Mr Juriansz. He said that one of the problems with the commission was that it kept enlarging its mandate and that it wouldn't deal with issues that were clearly within its mandate, and that by taking on new roles and responsibilities -- and heaven knows that happens with so many commissions and governments and everybody -- that was one of the problems. I think we should examine whether in fact they have been enlarging.
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He mentioned that. I don't want to go through his brief word by word, but he made some interesting points in his brief about that. I'll quote briefly from it: "The commission seems to believe that one of its main roles is to constantly strive to enlarge its jurisdiction. The commission's expansive view of its jurisdiction makes a backlog inevitable."
He said, "The commission imposed virtually no limits on the type of medical conditions which could constitute handicap and a great many of these complaints related to minor illnesses and ailments." What he talked about there was in dealing with disabilities.
He suggested that the commission was willing to look at virtually anything and that therefore the time it could spend on looking at really legitimate disabilities was limited. I know that's a matter of discretion, and that's a real problem, but I think Mr Pond may want to come forward with at least some suggestions in that regard and then we can either reject them or accept them.
He also dealt with the issue of fairness on page 6 of his brief. Remember that Commissioner Brown said she didn't feel the commission was at all biased, that because she had received complaints from both sides, in fact that means it must be operating well. I don't come to those same conclusions. That's one conclusion we like to come to, but I don't always come to those conclusions, because if we get down to the resources available to complainants and the resources available to, I call them defendants --
The Chair: Respondents.
Mr Bradley: "Respondents" is the appropriate word -- at the final stage. We're not talking about the early stages. I think she's correct in saying -- it would be hard to challenge her contention, at least -- that in the early stages the commission tries to be fair and that it's a level playing field. But Mr Juriansz says: "Complainants, regardless of their financial status, are in effect represented free by the commission. There can never be costs against a complainant, and costs against the commission are difficult to obtain and are rare. This scheme has negative effects."
He goes on to say, "The fact that the commission becomes the ally and representative of complainants at the ultimate stage permeates the commission's entire process and demeanour." That's only one person's opinion. I don't wish to say that because he says it, it is necessarily so, but I thought he had quite a balanced presentation. I would like to see us address that problem because it means that some people, rather than go through a long process, may simply pay off the complainant. I would call it hush money. It's a strong word, but I call that hush money. So that's a problem that I think has to be looked at carefully.
Remember, as I tried to say yesterday, it's not always a huge corporation we're dealing with. It could in theory be any member of this committee who could be in that position and might be forced to defend himself or herself in a proceeding, at some cost. It may be that the government pays that cost, I don't know, but those are situations.
We always think it's the big boss at the top, and often it's someone in the middle echelon who has been accused of that. I well recall -- just a very brief anecdote for the Chair -- that I had cousin who was accused, in a position he had many years ago, of discriminating against native Canadians, and his final comment to those who were having the hearing was, "By the way, my wife is a native Canadian." It kind of threw away the case. Those are the kinds of things. He had to place himself in a position of having to defend himself. I'm concerned about those kinds of resources.
He also mentioned head office delays, but Mr Marchese has mentioned that there have been some changes that have begun, and that certainly was brought forward by members of the commission, which may be beginning to place them on the right road.
The other is -- some might understand the details of the commission better than most members of the committee might, although some members may have great detailed knowledge -- that he talked about term limitations on commissioners and how the term limitations were not necessarily helpful. He talked about the fact that it was hard for commissioners to get experience in dealing with these matters.
While I'm not saying commissioners should sit for life, I do think that to limit people who have demonstrated that they are fairminded and good commissioners to two terms on the commission may not work in the best interests of those who come before the commission, that if you've got good commissioners and you want to keep them on, that's fine; if people aren't doing their job appropriately, then they be taken off.
I think the other thing we have to have to make it acceptable to people in the province -- and some people are never going to accept a Human Rights Commission, I understand that -- is that it must have all the trappings, all the indications of fairness. If people perceive that the composition of the commission is such that the people on it are either generally against complainants or generally for complainants, that becomes a problem.
It emphasizes a need of government, whichever government is there, to try to look at a process that will bring the fairest possible commissioners on the board. Perception is important, and perception isn't always right, but I think that helps to have the commission accepted among many in the population who today don't find it particularly acceptable.
I'll leave it at that because there may be some other members who want to comment on that and add to what I've had to say.
Ms Carter: We haven't commented on the need for better consultation with the aboriginal community and I think that should be in there.
I'm just quibbling about what you said about what Mr Juriansz said. He's not advocating, I don't think, that commissioners should take a bigger role. I know he comments that it's a shame to ditch them when they've just got experience, but I believe what he's actually recommending is that salaried people take on more of the burden. He sees a need to have more expert employees and to have the chief commissioner sort of as a final arbiter. I think that's what he's suggesting.
Mr Bradley: I think it's worthy of Mr Pond going through his brief and looking at them. I think you're right that he makes those kinds of recommendations. I simply mentioned the term limitations because I think there's a significant movement out there to limit terms of everybody on everything.
Ms Carter: The current system is too part-time to be effective.
Mr Bradley: Yes, I think you're right there. I read that into his comments as well, that it's very difficult to have part-time people developing the expertise that's needed. I know there will be arguments that can be made on both sides of that. Some people believe it's good to have those fresh, outside-the-loop views on a commission; others think you should develop some expertise on that.
Ms Carter: I think the point is that the whole question of how complaints are dealt with does seem to be a problem and does need very careful study.
Mr Marchese: Just a few comments on what Jim was getting at, particularly around the whole issue of neutrality and the whole issue of definition of "handicap": We talked about that with the commissioner yesterday -- I think Alvin asked the question and I raised the whole question as well -- about how respondents feel that the investigators are biased against them and how claimants and advocates feel that they're biased against the claimants.
Part of the comment we made to her was that the perception of course is what becomes the reality. How do you deal with that and how do you deal with the fact that you say that the system of course operates neutrally, that they're not biased? You have a problem where you're doing things neutrally, you say, but everybody believes you're biased, so you've got to deal with that. How do you deal with that?
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I'm not sure whether there's anything in the recommendations that have come forth, other than the Cornish report, for the most part, that might deal with that particular issue in terms of how you get to separate the roles. The problem is that they're performing too many roles and so inevitably you're going to get accusations of bias, so that's a particular problem.
In terms of the definition of "handicap," I think it's a problem, because if we do what you were suggesting, or what Mr Juriansz was suggesting, what you may then need to do is to define the categories of disability. If you do that, then you have litigation around that, presumably, and around what isn't there. The sad thing is that you'll have to adjudicate them case by case, and yes, it takes time. But I'm not sure we can get to your point or Mr Juriansz's in that way, and I'm not sure I have a solution either, other than adjudicating and making that system more efficient.
Mr Bradley: It won't be easy. I agree with you entirely.
Mr Marchese: Those are the two points on those two things. I then thought, as you were speaking, about what we should do about the report. I might have stated briefly how I thought the framework might be, but what we need to do is identify what the present system is doing and what the respondents who came here today suggested, because the commission is already doing some of the things they suggested, but there were other suggestions that are additional attempts to make it better. So we identify what the system is doing, list all the things that the presenters suggested that would improve it so that we could look at those changes, and say yes, those are good, or not.
The third point is to see how the whole Cornish report fits into either those additional suggestions or the other suggestions they haven't made that would revamp the whole system altogether.
I'm not sure whether I have comment on the structure of the way that should be presented, but I think those three things need to happen so we can get a better view of what we need to recommend.
Mr Curling: I like the structure that you lay out there. I'll be concerned too about any new things we want to put in it, and I heard Ms Carter saying, "What about the aboriginal people?" Although I think it's important itself, we've got to concentrate ourselves on what they presented, what was raised and deal with that. We could actually get into, "What about the others who have not yet been included or not commented on?" and the report could get so wide with what's not been said here. We should concentrate on what was presented by the commission, as you said, what was heard, by the presenters, and the comments made by colleagues here to get questions out of the individuals.
One of those was things like training. It was raised, and we didn't raise it and I'm just concerned. I'm sure this is a preliminary aspect of it. Some of the things we may go back to and look at the approach and say, "We should have that in place," in other words, training about alternative dispute resolution, which has been mentioned here.
But I just want to say, on the overall framework, that we must concentrate on what was presented here in the last two weeks.
The Chair: There was one point I think where the commissioner actually said, on the subject of training, "We really are working on that," and then she went back and said -- the Hansard has it all but she did definitely make a comment; she acknowledged that there was a problem with the training.
Mr McLean: Yes, she did.
Mr Marchese: Just on that, Madam Chair, I think the point is that there may be clearly things that need to be done with respect to human rights and aboriginal people. I would find it useful that if Chief Gordon Peters had a presentation he was going to make that is in writing, if he could send it to us, then we would have a sense of what could be part of a report so that --
Mr Curling: Well, we didn't. One of the things, though, that we tried to do was to get a balanced presentation here. As we went along, and I want it to be on record that the staff, the clerks and all those who put this together did a terrific job even to get people here, what we were trying to do was get a balance and this was almost thrown off balance at times when people didn't come. The chief was one of the ones we wanted really badly for a presentation, but if it is not presented, I don't think that we start pursuing to start to say --
Mr Marchese: No, but if it's a written presentation that he would have made to us, if it was available, it would be nice to have.
The Chair: I think that's a fair question. We did try to schedule him again and he told Ms Mellor, the clerk, that he just was too busy at this point because there was so much going on that he had to respond to. But definitely I think we could ask his office if he had a prepared brief. Other committees accept prepared briefs all the time. It is a big void, actually.
Mr Curling: Yes, but the effort was made by us.
The Chair: Oh, us, it was.
Mr Curling: My feeling now is that if we start to say, "We should have that," and that's the approach we want to make, in all honesty many of these were being cancelled. We even tried to extend. We tried to accommodate.
Mr Marchese: We appreciate that. You don't have to give any apologies.
Mr Curling: No, I'm not. I would never apologize for the government or whoever else. I'm just saying to you that we're trying to do that. We are restrained by the time we have and the presenters we have.
Mr Marchese: I appreciate that. All we're saying is that if he had a written submission to make, it it's available, to send it. If it's not available, then we don't have a report. But he was to have been one of the presenters, and if he had a report, it would be nice to have it. Do you see what I'm saying?
The Chair: Do you wish the clerk to call his office and ask him if he has it in writing?
Mr Curling: If he has it in writing, fine, but it would have been nice -- you see, the way it was structured, Mr Marchese, as you know, we brought the commissioner back here to say: "These are the things. Could you comment on some of the things we heard?" In other words, if the chief had presented something, then we could have had that opportunity to ask the commissioner.
The Chair: That's true.
Mr Curling: I think beyond that now, we're trying to write a report --
The Chair: He does have a point that the commissioner didn't have a chance to respond to Chief Peters either.
Mr Marchese: It's true, but to simply not have that information that's available would be a mistake, an oversight even. I just think it's a good thing procedurally to do.
The Chair: If you two agree, it's a consensus, so it's up to you two.
Mr Curling: My feeling is that if the chief wants to be asked to present it, we will say, "In addition, here was what was presented," and let the commissioner react to that, and us, without making any deep comment on that, because I would have really liked to ask the commissioner to comment on that. Tell the chief to present. If he has something in writing, that's fine.
The Chair: There is time. In fact, obviously we won't be dealing with this report until the House resumes. Why don't we ask the clerk to phone Chief Peters's office and ask if he had a prepared brief? If he did, then the clerk will circulate it to the commissioner and to the members of the committee. In that way, the commissioner may read it and respond to the committee and it can deal with her response. Then you all have a copy and so does Mr Pond and we can discuss it at our next meeting. Is there any further discussion?
Ms Carter: Just on this question of aboriginals, I seem to remember when I was on a committee discussing the Constitution, which of course came to nothing, there was a question that there might be a division in the aboriginal community between elements that weren't concerned with having a Human Rights Code imposed upon them, and other elements, notably women, who felt that to have that in operation and including them was an asset to them to protect their rights. I don't know what would be in Mr Peters's presentation, but I think there's just a caveat there that we should be aware of possible different opinions within the aboriginal community.
The Chair: That's important, I know. It's interesting to observe that community, because I think the women in that community are just starting to be given some opportunity. It took us to chain ourselves to the railings a few years ago. There certainly are stated concerns by some members of that community as to their being held back.
Mr Bradley: I think you're correct there, Madam Chair. I am also concerned, and the member for Peterborough has made a good point in expressing concern that the view that is presented may not be the view of everybody,. When you get into the whole issue of aboriginal self-government, there are differing points of view from many of the groups that represent women within the community and men within the community. There's sometimes a divergence of point of view.
I'm a bit concerned about that as well and I don't know how we address that, because we're still going to receive Chief Peters's submission, should he wish to make it, but I don't know how much that will reflect what some women within the aboriginal community feel about issues. There has been some divergence of views expressed to the public at large. I think that's worth noting, at least, on the record.
The Chair: I'm just going to remind committee members that the committee is sitting on Tuesday and Wednesday of next week to review government appointments.
As far as the drafting of this report is concerned, the committee has already put out for draft preparation a report on the Ontario Food Terminal and the Workers' Compensation Board, so this will be the third report that will be coming back to the committee in a draft form for your review.
Because of the timing of the other two reports, would it be acceptable to you if we let Mr Pond find out from Ms Mellor, the regular clerk of the committee, what the timing would be for this report to come back? There would be an understanding that Mr Pond, when he's given that date by the clerk, would get the report to the committee members a week in advance of when we would be dealing with it so you would have lots of time to review the draft. Is that acceptable?
Mr Marchese: Sure.
Mr Curling: Sounds good to me.
Mr Pond: Keep in mind, though, that because this is the first time we've looked at this particular commission, what you'll get from me the first time around will be very tentative, full of options for you to choose from, that sort of thing. I suspect that with regard to the other two agencies you've just mentioned, your reports are further down the road.
The Chair: Not actually, no. But I think the main thing, in fairness to you, is that you have some ballpark idea of when to have it prepared. That's also important for the committee to have. With our schedules, we need a week to read something on our desks before we have to deal with it.
Mr Pond: Yes, we do that normally.
The Chair: Yes, that's excellent. Anything further?
Mr Curling: I don't want to put any pressure on the Hansard people, but what kind of time do we have even to get Instant Hansard, to go through that? I think there are things that could be in there that would be helpful.
The Chair: There has been a concern reflected by the clerk on your behalf to the Hansard office that we would get them as quickly as we can, and so the Hansard office is putting a priority on them. Hopefully next week.
Mr Curling: I'm just saying the timing of that and the final report.
The Chair: Oh, yes, we will have Hansard before we deal with the draft report. Definitely.
Mr Curling: Okay.
Mr Bradley: We also have the pressure of the Chair, who I'm told has considerable influence in this regard.
Mr Curling: That is so. True, I've heard that.
The Chair: There is no further business. The committee stands adjourned, and I thank you for your cooperation this week.
The committee adjourned at 1154.