EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
BUSINESS CONSORTIUM ON EMPLOYMENT EQUITY
NATIONAL ACCESS AWARENESS WEEK, ONTARIO COORDINATING COMMITTEE
COALITION FOR LESBIAN AND GAY RIGHTS IN ONTARIO
DISABLED PEOPLE FOR EMPLOYMENT EQUITY
NATIONAL COUNCIL OF CANADIAN FILIPINO ASSOCIATIONS
CONTENTS
Tuesday 17 August 1993
Employment Equity Act, 1993, Bill 79
Business Consortium on Employment Equity
Allan Bishop, chair
Maureen Geddes, representative
Phillip Francis, representative
Pat Mackie, representative
Joe Hueglin
National Access Awareness Week, Ontario coordinating committee
Paul Groh, chairperson
Coalition for Lesbian and Gay Rights in Ontario
Nick Mulé, spokesperson
Employment Excellence
Mike Buckborough, co-founder
IBM Canada Ltd
Dr Anita K. Ross, vice-president, human resources
Laurie Harley, manager, public affairs
Disabled People for Employment Equity
Eric Schryer, coordinator
Bruce Ryder
Rod McCallum
National Council of Canadian Filipino Associations
Carmencita R. Hernandez, regional vice-president
Continued overleaf
Continued from overleaf
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
*Acting Chair / Président suppléant: Curling, Alvin (Scarborough North/-Nord L)
*Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
Chiarelli, Robert (Ottawa West/-Ouest 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:
Caplan, Elinor (Oriole L) for Mr Chiarelli
Carter, Jenny (Peterborough ND) for Mr Malkowski
Fletcher, Derek (Guelph ND) for Mr Duignan
Perruzza, Anthony (Downsview ND) for Mr Mills
Wiseman, Jim (Durham West/-Ouest ND) for Ms Akande
Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Harnick
Also taking part / Autres participants et participantes:
Hewson, Katherine, manager, employment equity legislation and regulations unit, Ministry of Citizenship
Clerk / Greffière: Freedman, Lisa
Clerk pro tem / Greffière par intérim: Bryce, Donna
Staff / Personnel:
Campbell, Elaine, research officer, Legislative Research Service
Kaye, Philip, research officer, Legislative Research Service
The committee met at 1004 in room 151.
EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
Consideration of Bill 79, An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women / Loi prévoyant l'équité en matière d'emploi pour les autochtones, les personnes handicapées, les membres des minorités raciales et les femmes.
The Chair (Mr Rosario Marchese): I'd like to call this meeting to order.
Mr Alvin Curling (Scarborough North): May I ask if the minister will be here today and during the hearings?
The Chair: You asked me that yesterday and what I said was that a staff person would be here but I didn't think either the deputy or the minister would be here today, no.
Mr Curling: It's very unfortunate. I remember through Bill 51, rent review, as the minister I was there constantly. I hope the minister will be here for this important bill.
Mr Jim Wiseman (Durham West): Give me a break.
BUSINESS CONSORTIUM ON EMPLOYMENT EQUITY
The Chair: I want to welcome the members of the Business Consortium on Employment Equity here this morning. Perhaps, Mr Bishop, you, as the chair, might introduce the other members. You have a half-hour. You may decide how to use that time, and hopefully leave plenty of time for questions and answers.
Mr Allan Bishop: Thank you, Mr Chairman. We intend to make a presentation of about 10 minutes in length and then allow, obviously, the members of your committee to ask us questions as you see fit.
I would like to introduce the three other representatives from our consortium who are with me this morning. Maureen Geddes from Union Gas is on my right, Phillip Francis from Maclean Hunter is on my extreme right and Pat Mackie from K mart is on my left.
We certainly appreciate the opportunity to address the committee today on issues that we think are of critical importance. While we understand that these hearings are primarily oriented to the bill, it is impossible to ignore the draft regulations which contain so much of the substance of the government's direction in these matters. Therefore, we ask that you bear with us if we refer occasionally to the proposed regulations that accompany Bill 79.
We have provided you with copies of our submission, and I hope you have those. Therefore, we will let the written document speak to the details. We would like this morning simply to spend a few minutes summarizing our key concerns and, as I've already indicated, my colleagues and I invite your questions.
Before we begin, however, I thought I'd like to give you a brief explanation on who and what we are. The consortium was established two years ago and represents a broad cross-section of businesses in this province. Our membership is diverse in terms of both geography and industry, and together we employ about 50,000 people in Ontario.
The consortium was established in August 1991, and its members share a common interest in the pursuit of equitable employment systems as a positive and proactive business strategy. The 10 members are Du Pont Canada Inc, K mart Canada Ltd, Maclean Hunter Ltd, Molson Breweries, National Grocers, Price Waterhouse, Scott's Hospitality Inc, Spar Aerospace Ltd, Union Gas Ltd and Westinghouse Canada Inc.
We recognize the changing demographics of Ontario and the impact these changes will have on both the composition of the workforce and the demands of the marketplace. We know that it is in our best interests to attract and retain the very best people regardless of race, gender, ethnic origin or disability. For these reasons, we view bias-free hiring, training and promotion as an economic imperative essential to increasing our productivity, improving our competitiveness and maximizing our workforce talent.
Certainly, some groups continue to be underrepresented in the Ontario workforce, and these situations must be rectified. But to try and address past biases by enforcing a system of new biases based on quotas, preferential hiring policies and other so-called positive measures, surely this is a classic case of two wrongs not making a right.
We feel strongly, and therefore we caution government that passing a bill which permits reverse discrimination could result in backlash from white males and deep feelings of tokenism among those given preference, and this will only poison public opinion and undermine honest efforts which otherwise would have been supportive.
There is only one truly fair employment system; that is a system founded entirely on merit, in which the best person for the job always gets hired, trained or promoted at every opportunity, 100% of the time. "Equity" means fairness, and you cannot be fair only to four designated groups. Regimes based on job entitlement are the antithesis of employment equity.
We urge, therefore, that merit be enshrined as the overriding principle of this legislation and that all sections providing for special treatment in the hiring and promotion of certain groups be eliminated. This would include removing section 5 of the bill, which now permits preferential hiring and deems that seniority rights are not barriers to employment equity, as well as scrapping subsection 50(2), which now leaves open a back door for government to impose quotas by order in council.
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We also ask that the right of employers to set their own goals and timetables, recognized in the draft regulations, be strengthened by moving these sections into the bill. These sections are 23, 24 and 25 in the regulations.
We did not address one additional concern that I'll refer to now before I pass the microphone over to Maureen, and that deals with the powers of the tribunal. We would like to see an appeal process beyond the tribunal and not have the tribunal as the court of last resort, so to speak. In that respect we would like to see the bill also amended.
I'd like to now turn over the microphone to Maureen Geddes. She will highlight some additional concerns that we have in respect to the legislation.
Ms Maureen Geddes: Another major concern of consortium members is the virtually unlimited right of access to information which the bill confers upon union representatives. This includes data on individuals, both union and non-union, as well as confidential business plans, financial documents and other records held by the employer.
We recommend restricting this access to ensure that individual as well as proprietary business data are not disclosed and limiting bargaining agents to information regarding only that part of the workforce which they represent.
We would like to draw the committee's attention to four other areas of the legislation which are deficient.
First, the bill and draft regulations require that one employment equity plan be prepared for each employer's entire workforce. We submit that this is impractical, given the diverse nature of many businesses today. Geographic location, workforce composition, economic outlook, degree of unionization and many other factors may vary significantly within a single company.
We ask that employers be permitted to determine the number of plans that are appropriate for their workforce, thereby giving them the flexibility to achieve meaningful goals and timetables.
Second, it should be specified that the Employment Equity Commission may require filing of a plan only if the employer failed to file a certificate. Subsections 11(3) and 13(3) should be amended so that the commission does not have carte blanche in this regard.
Third, the bill and the regulations differ in the composition of coordinating committees in multi-union situations, with management clearly being outnumbered under the provisions of the bill, while the regulations stipulate equal representation for both parties. We endorse subsection 32(3) of the regulations and ask that subsection 14(3) of the bill be amended accordingly.
Finally, we have grave concerns about the generality of section 26 of the bill. It leaves an employer open to vexatious or frivolous complaints by "any person," including competitors and conceivably even special-interest groups. We recommend that a provision be put in place that would allow the commission to refuse to proceed in such cases.
To conclude, we urge that Bill 79 and the draft regulations be simplified wherever possible and that administrative costs for businesses be kept to a minimum. Employment equity will work only if it is supported by business, and the last thing business needs right now is legislation which is time-consuming, complicated and costly.
Thank you for allowing us to present these points. We hope our comments have been helpful and we trust that your wisdom and good judgement will help shape employment equity and an Employment Equity Act that is fair for all of the people of Ontario. We look forward to your questions.
The Chair: Thank you. We'll begin with the official opposition. For the next round we'll go to the third party and then the government members. Okay?
Mr Curling: How much time do we have?
The Chair: We have approximately six and a half minutes per caucus.
Mr Curling: Let me just thank you very much for the business consortium coming before us. We have met before and you have put your points, and you have been consistent with the points that you had placed when you met me and now that you're before the committee.
I would also agree with you that the regulations should be an integral part of some of this discussion here, because when the bill was introduced we were not satisfied as to the wording that was stated there. It was then stated to us by the minister that the regulation would explain it all. Now that the regulation is out, we gather that we cannot discuss that. It's very, very unfortunate, Mr Chairman, and I want to make it be known to the committee that this is just not the way we should really be going and that we want to have very effective employment equity legislation.
Again, I want to say to you that merit should be enshrined in the legislation. I believe in that. Do you believe -- and let me ask you this question -- that those groups that are designated in this legislation are being shut out from being employed because of how they are designated -- in other words, who they are -- being some of the visible minorities, women, aboriginal people and disabled? Do you feel these people are being denied jobs because of the characteristics which they have?
Ms Geddes: I don't think there's any question that the traditional hiring practices have excluded a number of the designated groups. We have a whole set of policies, practices and procedures around recruitment that were based on what we felt was the best person at the time.
Changes need to be incorporated to recognize that some of our traditional recruitment methods may not be reaching all of the members of designated groups and that we may not even be reaching them to make them aware that we have opportunities they might be fit for. We need to examine as employers how we decide what the skills and abilities are that are necessary to do a job. Those are the kinds of things that you need to examine to ensure that your hiring practices are fair. To the extent that that hasn't been done, certainly there would be issues in terms of attracting non-traditional candidates to roles.
Mr Curling: So you would agree with me if I had said to you that some discrimination has been practised, sometimes being systemic in nature, and that there needs to be a plan in which to have these people being employed, considering first that they all are credible and they have the merit with which to do the job. Because studies have shown that even with those credentials, they'll still be denied the job, so we must have an employment equity plan -- call it whatever you want -- in place to give them access to those jobs, taking away all this kind of discrimination, sometimes unknown to the employers who have been practising that. Would you agree with me on that?
Ms Geddes: I would agree that the most critical part of this legislation is the employment systems review and the education that goes around making the changes to hiring practices and training practices and promotion practices in organizations to ensure that any barriers have been identified and removed and to ensure that supportive measures are there where necessary.
Mr Curling: Just because of time, I give my colleague that. I know we have a short time.
Mrs Elinor Caplan (Oriole): Thanks very much. Based on the last thing that you said, I was thinking about some of the comments that you made about progressive employers. I've attended employment equity awards dinners and been very impressed by the fact that many progressive employers felt that employment equity practices and programs and education were good for business. The general impression that I've had from business leaders with good employment practices is that they have embraced the goals of employment equity.
Within that context, this legislation I think is regressive. The comments that you've made about it being seen as intrusionary and turning the clock back from the practices that good employers are already practising -- it's almost like it's poisoned the atmosphere where you had progressive, good employers leading the way, many of whom are on your list and are now saying this is really problematic for that.
You support the goals and the principles, you support employment equity legislation, yet you agree -- and I said many of the things in the Legislature that you said in your brief. If you were giving advice to the government as far as this piece of legislation is concerned, what are the parts of it that you find most regressive as far as the intrusionary approach is concerned? If you were saying to them, "Don't do this; do that instead," would it be the educational components, the reporting components? What are the parts of it that you think are out of balance?
Mr Bishop: I'll try and respond to that. First of all, we've indicated in our presentation this morning, and indeed in the brief you have, that the merit concept in our minds should underlie this entire piece of legislation and should underlie all of our thinking in terms of the principles of employment equity. I would state that up front in response.
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Maureen just referred to the importance, and indeed in our view the overriding importance, of qualitative measures in terms of a proactive approach to employment equity in organizations. I don't think we can overemphasize the importance of that and indeed, to a similar extent, the de-emphasizing of numbers-gathering, administrative work that is necessary behind the whole effort that it takes to gather statistics. We're not saying that some analysis of numbers is not important. Indeed, to have a sense of where you are, you have to do some numbers-gathering. But that aspect of the legislation should be de-emphasized as much as possible, because we have to remember that in terms of resources, the business community, particularly right now, is short of resources, and the investment that is allocated to employment equity effort you don't want directed to administration and numbers-gathering. You want it directed to the qualitative efforts.
Mrs Caplan: The qualitative efforts that you see are the educational and the employment opportunities that could be available if resources were --
Mr Bishop: Yes, and the systems reviews, your hiring practices and promotion practices and so on.
The Chair: Thank you, Mr Bishop. We've run out of time. Mr Tilson and Ms Witmer.
Mr David Tilson (Dufferin-Peel): Yesterday I pointed out to the deputy minister that when the bill was first introduced in June 1992, the minister indicated that it would cost $4 million, which was being allocated for the Employment Equity Commission in 1992-93. The 1993-94 estimates indicate that the budget for the Employment Equity Commission will be $6 million, and that's just for the Employment Equity Commission; it doesn't include all the other stuff that goes with it.
My question to the minister with respect to business, whom you represent, was that now anyone with over 50 employees, a staff of 50, is going to have to do a number of things, all of which we know and which I'll briefly summarize. They have to survey their workforces and collect data; they have to review their employment practices in accordance with the regulations; they have to prepare an employment equity plan; finally, they have to file a certificate. Oversimplification, but it's going to take, in my estimation, a lot of person-power and a lot of money for a business of over 50 people.
I asked the minister whether they had any data or any reports or any estimates from consultants as to what it would cost different businesses to do all this stuff. She didn't have a clue.
My question to you is whether you have sat down -- and it may be difficult, because I appreciate it may change from company to company. But what is this going to cost an average company, if there is such a thing?
Mr Phillip Francis: Companies, larger companies particularly, already have human resources departments. These people are specifically trained in the areas of the bill, the discussion of the bill, such as developing the employment systems and so on and so forth within an organization to ensure the workforce is correctly trained and to position the company competitively. I think it's very difficult to answer your question, because the focus of these people will be in the employment systems review and training. Perhaps there will be more focus than otherwise would have been in existence if the bill had not been passed.
I think there will be many smaller companies, however, which do not have human resource people. Those companies, I think, will find it more difficult to go and hire somebody to fulfil the requirements of the bill. They'll either have to use consulting companies or, if the commission itself deemed it to be necessary, it may provide some consulting services to assist these companies. There's going to be a cost. There's going to be a changing of focus. Ultimately, if the bill provides companies to determine the best route for them in employment practices, then the costs should be minimized. But the actual dollar cost, I don't know the extent.
Mr Tilson: Mrs Witmer has some questions.
Mrs Elizabeth Witmer (Waterloo North): Yes, I'd like to pursue the merit issue. I indicated yesterday, and certainly it's one of the key concerns that I have, that nowhere within this bill is there any mention of the fact that the employer preserves the right to hire the best individual for the job. I see that your number one concern here as well addresses that particular issue, the need to be cognizant of the principle of merit and fairness for all. In fact you mentioned that if that doesn't happen, we're going to be cursed with reverse discrimination and tokenism.
The bill is silent on the merit principle. It is silent on fairness for all. Could you explain a little further as to what needs to happen in order to ensure that there is the perception in the mind of the public, in the mind of employees and employers that indeed there will not be tokenism, there will not be reverse discrimination and that indeed individuals will be hired on the merit principle? What can the government do to ensure that that really is the case?
Ms Pat Mackie: I think, as we asked, the major thing that has to happen is that the merit principle would be enshrined right in the act so that that is a response to the criticism, to the concerns of organizations that are doing more with less, trying to produce quality products and give quality service, that it's imperative that they have the right person for the job. If we can say, "Yes, it is an employment equity act, but it clearly states that we still as management have the right to hire the best person for the job," then I think that alleviates a lot of the criticism and would give a lot more support to the act and to achievement of employment equity in Ontario.
Mrs Witmer: Is there anything the government could be doing? I know that this bill really gives most, if not all, of the responsibility to the business community as far as employment equity is concerned. We know there's underrepresentation, but what can we do? I guess what we need to do is we need to eliminate the barriers that are preventing some of these members from the designated groups from accessing, because we all know that once they overcome the barriers they have the same abilities as the rest of us. What could the government be doing to assist?
Ms Mackie: I think the biggest effort they can make is to help with the education process, the employment systems review. I understand there are going to be guidelines coming from the government in that regard, and I think that's very helpful, particularly for smaller businesses that don't have the resources or the expertise on hand to know how to really look at their systems and see if there is any systemic discrimination. I think some assistance in that regard to help organizations with documentation on how to do a systems review, but also then with some type of financial aid to educate the workforce -- many companies, such as our own, have many geographical locations. We have a lot of training to do in each one of our 80 stores in Ontario to make sure that everyone involved in hiring and promoting and dealing with people is right up on employment equity and is proactive in this regard.
Mrs Witmer: I would just --
The Chair: We ran out of time for that. You'll have another opportunity, hopefully.
We have four speakers on the government side, so just remember that, Mr Winninger.
Mr David Winninger (London South): I'd like to thank you for your presentation today. I know that some of your members have already made some strides in the area of employment equity, so I'd like to deal with this issue, which I think is really a myth, that merit is somehow being sacrificed on the altar of employment equity.
We all know that while the merit principle should apply when employing people, it hasn't always historically. Other considerations, such as cost, long-term planning, just to name a couple, have come into play.
It seems to me, however, that if the individual from the designated group has the most merit of all applicants, the question would be a moot one as to whether merit is being jeopardized. If, however, the person is not from one of the designated groups and has more merit, as you put it, than an individual from the designated group, quite clearly our legislation, Bill 79, allows an employer to hire the person with more merit. If you have two individuals, to keep the case simple, one from the designated group and one from a non-designated group, with equal merit, surely in the interests of eliminating systemic barriers, which you've alluded to, the employer might legitimately hire someone from a designated group with equal merit. I am wondering what your response to that is.
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I just have a short secondary question. If indeed an employer who fails to file a certificate under subsection 11(2) is the only employer who might be required to file a plan or maybe have a plan conferred on them by the commission, would that not lead to excessive auditing on the part of the commission? Wouldn't it make more sense for all employers, as needed, to file those necessary plans so the work of the commission, which is in essence a monitoring one, could proceed unimpeded?
Mr Bishop: In the context of your first question, I would say that while the concept of merit may be somewhat implied by the legislation, we're of the view that enshrining it in the legislation leaves no doubt. That's why we're very anxious to see reference in the preamble, hopefully in addition to what is there already, and also in certain sections within the act.
In terms of the example that you used where you have two equal candidates, I would say that the face of business is changing in Ontario and going forward. As we look out, we think in many ways we're going to be facing a skills shortage as we move forward through the rest of the 1990s. That really is the message for the workforce of Ontario; that is, the development of needed and useful skills in terms of preparing everyone for the employment market in the future is going to be critically essential. I think that with the interest that many organizations are going to have in Ontario to seek out the best-qualified and best-skilled people for positions, we're not going to face too many of the examples you referred to.
Secondly, the nature of organizations as such is that I think we have a strong interest in making sure that our organizations reflect the communities we serve. Indeed, I think that underpins what we think is the proactive, positive business aspect of employment equity. If we reflect the communities that we serve in terms of the demographics of our own organizations, I think our competitive position is enhanced by that. So there will be opportunities, even I think in circumstances like the example you presented, where that will assist the designated groups.
The Chair: Mr Fletcher, one final quick question.
Mr Derek Fletcher (Guelph): It's good to see you again. I was also at a lot of employment equity dinners in my riding, and when we were talking about the hiring practices I was asking what some of the employers thought about the employment equity legislation that was coming out. They said: "For one thing, why? Because we already have our plan and we've already gone through the legwork to have our plan." Once the why of it was explained, "It's about time that we had some ground rules to work along so that we can get our plan." So I started asking them how they got their plans in place. I notice that many of your organizations do practise employment equity plans. Did you go through the same procedures? Did you have to identify in your workplaces what needed change, how you were going to come about getting people into certain positions, people with disabilities? And when you did your target hirings or promotions, you did do the groundwork first? You went through and did the studies, such as what is being asked for in the act?
Mr Francis: The issue of establishing your own road map is going to be different for every company, but I guess you have to do that. There is a requirement within the organization to establish just where you're at in terms of your own systems, and then you build on that for the future.
To go back to the previous question in terms of what happens when you fail to file and why that might happen, the answer is, the more complex the process that is dictated, the more likely it is that people are not going to be able to file because they get lost in the myriad of instructions or the process that is required. So really, it's a matter of trying to keep the process as simple as possible and allowing each company to set its own road map.
Mr Fletcher: Many companies have done it. I'm just wondering, as they have gone through the process, if they've been hiring a lot of unqualified people through their own plans, or have they been hiring qualified people through their own plans, and how is this going to change that?
Mr Francis: I think what happens when you start to review these processes is that you do find systemic barriers for the designated groups. While you may not have been aware of those systemic barriers, you become aware of them and then you can start to implement training programs that provide greater opportunity.
Some of the things that you might do would be, as an example, accessibility studies to your organization, physical demands analyses so to determine what accommodation might be required for a person with a disability to do a specific job. You may not have looked at those issues previously, but by doing these things you are able to put in place programs that ensure that if a person from a designated group applies, there are no barriers.
Mr Fletcher: That's been one problem that been corrected also --
The Chair: Mr Fletcher, we've run out of time.
Mr Fletcher: -- as far as getting the ground rules and everything in place so that we can remove the systemic barriers that have been there.
The Chair: Mr Fletcher, we've run out of time. I'm sorry, we'll have to move on.
I want to thank all of you for making this presentation and for participating in these hearings.
JOE HUEGLIN
The Chair: I would like to call Joe Hueglin for his presentation. Welcome, Mr Hueglin. We have half an hour. You've seen how the proceedings work, so you can regulate the time accordingly to allow for the questions and answers.
Mr Joe Hueglin: Do you have a copy? Has the copy been forwarded to you?
The Chair: Yes, it has.
Mr Hueglin: I had some difficulty in putting it together and I'm very pleased in getting it down to you in time. Shall I just begin then?
The Chair: Yes.
Mr Hueglin: In three weeks from now, it will be 37 years since I first walked into a classroom in Essex South, very close to Windsor where some of your members come from. I've taught on Indian reserves in northern Quebec. I've taught in mixed Indian populations in Blind River, in Welland, in Niagara Falls. In each case I was charged with passing on to our children the accumulated knowledge of the ages.
As they walk into my classroom this September, they will be taught that there are cause-and-effect relationships. They'll be taught that all people are the same and that they have the same basic needs, that there are ways universal to every culture about how to solve these needs, and in particular, that the outcomes of a particular culture are shaped by the choices made by those who hold decision-making power. That power rests in the hands of this committee and the members of the Legislature.
Few students in Ontario's schools today will be taught of the long evolution from a society where status was inherited at birth to one which reached this apogee in the preamble of the Ontario Human Rights Code.
History is a subject little taught in Ontario these days. Nothing is known of monarchs or aristocrats or of the struggle that went on for centuries in order to obtain democracy. This high point in human development, the Human Rights Code of Ontario, today is threatened by the principles of Bill 79.
The Ontario Human Rights Code set as the ideal for our society that individual capability was to be the standard by which we were to judge one another. Neither religion nor race, sex nor any other attribute that divides us into groups but only individual merit was to be the criterion, and the weight of the law was to fall on those who acted otherwise.
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I can recall at the end of the Second World War in 1948 or so, when television was starting to come in, on the Detroit television there was advertising: "Don't be a schmoe, Joe; be in the know, Joe. Religion and race have no place." It happened to stick in my mind because it tied my name into it. But as long ago, then, as 1948, this process was begun when someone in a town outside of Chatham, Ontario, who was black couldn't get his hair cut because the barbers wouldn't do so, and when there were many other aspects of our society that were accepted as the norm.
Now, the Human Rights Code is not accepted universally yet in theory or honoured in practice. But individual merit has become accepted as the ideal to which actions are squared. The word "paradigm" is used. I don't quite understand it completely, but the paradigm has shifted in our society so that merit and individuality in treatment has become that paradigm.
Bill 79 and collateral legislation -- the police act -- and some of the activities that are going on in universities are destroying this consensus that has been arrived at within our society.
When the upper cohort in current labour force statistics, which run, if I'm not mistaken, from 15 to 65, entered the workforce, there was a minuscule percentage of visible minorities in Ontario. The expectation by almost all in society was that most women would become homemakers when they married. Have a job, get married, have kids and raise them. Aboriginal peoples had not begun to make their urban migration in significant numbers.
That was then; this is now. But the societal patterns of 1948 are still reflected in the labour force statistics of today in that the 15-year-old of then is the 65-year-old of now. These are the statistics that are being quoted in percentages still. The reality that gross labour statistics being used to justify employment equity are reflective of another age is ignored by those seeking to impose their views.
These "equality seekers," as Alan Borovoy used the term yesterday in the Toronto Star, are also unwilling to accept that individual merit has become the accepted norm and that, properly administered -- and it is most improperly administered -- the Ontario Human Rights Code could deal with those who discriminate. They accept anecdotal and impressionistic data as valid. They ignore serious studies that differ from their predetermined points of view. Statistics based on studies of 150,000 job leavings, the whole of the labour force of the 1986 census, are simply swept away without consideration. They press forward with remedies for problems that are in the process of being resolved through evolution in the marketplace. If 80% of the workforce is going to be of designated groups, these groups are going to have to be employed, whether the employers want to or not. They refuse to even consider that Bill 79 is a remedy that ignores reality and is destined to undo the positive effects of the Human Rights Code.
Bill 79 does not focus on the competency of individuals in that nowhere in it is capability mentioned. Rather, it divides society into groups and by fiat declares that employers shape their workforce, not towards efficiency so we can compete in the world, but to arbitrarily arrived-at figures, under threat of having their enterprise effectively taken over by the agents of the state if they do not submit.
The effect of the collateral laws forcing quotas on police forces has led to rising antipathy among Euro-Canadian males and their families. Assigning quotas in universities, such as is occurring at Brock University in the Niagara Peninsula, has resulted in antipathy among Euro-Canadians of both sexes, unlooked for, unsought for, indeed unwanted.
Gratuitous comments on both these matters are made by students in the classroom today. Their justice is questioned as is the validity of the principle of equality before the law that is taught as being the basis of our system of government. As one tries to teach civics, the idea of the equality of all is rather difficult when these things are being raised against you or against the principle.
Should Bill 79 be made law, and its principle, and I think I'm quoting paragraph 2 of section 2 correctly, "Every employer's workforce, in all occupational categories and all levels of employment, shall reflect the representation of aboriginal people, people with disabilities, members of racial minorities and women in the community," be imposed, this disquietude will increase.
The reflection is based upon Statistics Canada, at least in the police act, not upon labour force participation but upon Statistics Canada. The Niagara Peninsula I think is 52.6% female, although the participation rate by women is far below that.
If this principle be put into effect as it stands, the educational system will no longer be dedicated to having each individual developing to the highest potential possible. I read the Toronto papers. I see the high-level students who are in the papers at the end of the year, and I would say there is employment equity or at least education equity in the top-level students as I see them, because these people are certainly not reflective of 90% Euro-Canadian background.
Rather than this, training in all occupations -- to be electricians you have to train electricians -- at all levels would have to be shaping individuals to fill the employment equity-generated numeric goals. If you are producing 2,000 electricians in a year, and you have to fill these positions, then the educational system has to be put in that direction. Perhaps you can explain to me how it would work otherwise.
History has shown, and I would argue this with anybody, that state-generated plans fail. It is ironic indeed that while eastern Europe is seeking to adopt the free market economy to regenerate its societies -- and the Toronto Star is running articles on the successes of the Cuban revolution -- Ontario is moving to a plan that constrains all business and education to state-set goals.
As a student of history, a teacher and parent of a dynamic 18-year-old daughter, whom I will stand up against any male in any way, shape or form, I can do no less than to ask that the committee consider the effects of the course the government is setting our society upon, because I firmly believe it is counterproductive to what the Ontario Human Rights Code has achieved.
That's my statement, perhaps too long. If so, I apologize. I stand open for any questions.
The Chair: We'll begin with the third party.
Mrs Witmer: Thank you very much for your presentation. It's obvious you are sincerely concerned about the bill the government has put before this province. I see that your primary concern, if I interpret this correctly, is the fact that individual merit will no longer be the criterion upon which individuals are hired. Is that correct?
Mr Hueglin: I believe that is the most important single achievement that has been developed in our society, that this is the ideal we are to work towards. It is not found within the bill. As to the gentleman who asked a question earlier, it may be alluded to, it does not exist, and if it does not exist in law, it does not exist.
Mrs Witmer: That's true.
Mr Hueglin: The secondary thing, but it's tied in with merit as well, is within the education system. It is our responsibility to take what there is there and to develop it along whatever lines and to the best advantage of the student, yet we're establishing a society in which we are going to have to produce, according to this particular principle, certain -- I haven't used the word "quotas." I've studiously avoided it. I don't want to. In any case, if you're going to establish goals that mirror the community, you're then going to have to have the educational system directed there or it's going to be impossible to do. So the two things are tied: individual liberty, if you will, to develop the individual on the one hand, and then that the most meritorious person be selected by the employer.
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Mrs Witmer: I was interested in your comments on page 3. I was rather concerned as well. We know that this bill is being discussed by individuals and groups throughout the province and certainly there has been some uncertainty created, and I would support you. I've spoken to some students myself at the community college and high school and university levels and I can tell you that they are concerned about this legislation. They have indicated to me they feel quite confident that they can compete equally for any job and they really are not interested in this type of legislation which would appear to give some of them a head start.
You mentioned that you've seen this rising antipathy among Euro-Canadian males and their families and I'd like to hear a little bit more about that. What is happening that we need to be aware of?
Mr Hueglin: I think perhaps the jokes that exist within a society are to a degree a reflection, or the banter that goes on, and the banter that's going on is: "Well, you've got an advantage over me. First of all, you're female. If you had a disadvantage, then you would have two advantages, and here I am, a white male, and if I had a sex change, then I would have an advantage that would at least be halfway equal to you." These exist within our society. Anyone who has not heard something of this nature lives a very sheltered existence or simply lives within a group that is so oriented in a particular direction. This then is a reflection of the feeling that there is.
One listens to talk shows from to time. They aren't reflective of everything, but it isn't the men who are coming on, it's mothers coming on. Some poor fellow wrote in and complained about his daughter not being able to get ahead in teachers' college because she wasn't a visible minority. So here we have the father of a daughter; it's becoming all fragmented, anyone who suggests that it is one group. It's a complete fragmentation.
In the employment equity review in Ottawa when the legislation was being reviewed there, we had visible minority groups coming and saying, "It's not good enough to have 6.3%, we have to have 1.2% for this particular group because the other groups are getting more jobs than we are." That was the suggestion of one group before there.
Either we are viewed as individuals qua individuals or we are being viewed in this way. Lebanon used to be the example. It's no longer the example. You can fill the example in yourself today, if that's the way we are.
The Chair: I'd like to ask Mr Tilson to ask one final question.
Mr Tilson: There's one question, Mr Chairman --
Mr Hueglin: If I talk too long, would you shut me up?
Mr Tilson: No, he does that to me; he doesn't do that to you. The question that I have, sir, is that there's no question that if we passed -- when I say "we," the Legislature of the province of Ontario -- a law encouraging the hiring of white males, I can just imagine what would happen in this province. First of all, it's against the law to do that, I think, I would hope, and yet we're now going to have an employment equity law which is going to encourage the hiring of racial minorities, women etc, and of course you look at subsection 50(2) and that's going to be done by regulation. It's not even going to be done by this Legislature. We're going to have some bureaucrat who's going to list off all the percentages that we're going to have.
My question is, I'd like your comment with respect to the reverse discrimination allegation that is being made, and you have commented on that briefly; at least I think you've commented briefly with respect to remarks that are made. If we're trying to solve a problem of racism or sexism, is this bill in fact creating even more of a problem with respect to racism and sexism?
Mr Hueglin: The response I would have in that regard is something that could be called the Cornish report. The Cornish report looked at the Ontario Human Rights Commission, and in there it looked at its composition as of April 1992. At that time it was 62% female, some 14.8% visible minority male and only 15.8% white male, undifferentiated as to sexual preference, okay? I say that because this particular human rights group of people then certainly are not reflective of the community in which they are making decisions, and they appoint tribunals that make decisions the government then accepts. This is what is upsetting people, because we are being divided and because there is not even an equitable representation in many of these circumstances. You're having a negative reaction and it has to be -- what else is it except reverse discrimination if you end up with a body in which there are only 15.8% white males?
Somehow or other the system is filtering out that body which it destabilized as still the most powerful element within our society that goes along with things, that accepts things. It has generally accepted the idea, the concept, the paradigm of individual equality, but if forced into the position of fighting back has the capability of doing so more than any other group has the ability to push forward.
Ms Jenny Carter (Peterborough): Thank you very much, Mr Hueglin. You seem to be assuming that all is now based on individual merit. In fact, you even seem to be suggesting that we've gone past that point of fair representation and are discriminating against white males. If so, I'm not sure what your concern about this act is, because implementing it is going to be very easy if, when companies do their surveys, they find they've already achieved or passed the quotas.
Unfortunately, though, I'd suggest that you are mistaken factually. Are you aware of studies other than the ones you quote, such as the report of the Commission of Inquiry on Equality in Employment of 1984 and the report of the special committee on visible minorities in Canadian society, also 1984, which show that relative to other immigrants racial minorities experience high rates of unemployment and less money and are less likely to find work in their chosen field?
It so happens that there is a gentleman present in this room who I understand had wished to present but was too late to get on the timetable. He is claiming, for example, that electricians at the Ford Windsor operation do not show a fair balance. I have some figures here which he has given to me that in 1967 out of 167 electricians -- and you mentioned electricians particularly -- five were non-white, zero were women, zero were native Indian, and in 1993, 184 electricians, two non-white, no women, no native Indians. So that just is a particular case of the need for this kind of legislation.
Also, we've had previous --
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Mr Hueglin: Do you have a question for me? So far I've heard no question. I've heard nice statements.
Ms Carter: I've asked you if you're aware of these other studies and I'm wondering whether you can support your contention that we have no need for this legislation.
Mr Hueglin: Yes.
The Chair: Allow the deputant, then, to respond to that.
Ms Carter: Okay, yes.
Mr Hueglin: There are two macro studies, both of them completed in March 1992, the one done on the 1986 census and the second done on the labour market survey of 1987.
One indicated that in promotions and such, on the basis of 150,000, there was a 10% advantage for females and that there was no indication of problems with visible minorities.
In the second, which was done on the census and had to do with the amount of moneys and such that they obtained, it was considered there after studies -- and this was done by a chap of East Indian origin -- that the difficulty in large measure has to do with someone coming from another country who doesn't have the language skills, and that after a period of years it becomes equalized. But for someone who was raised in Canada with the same education, that is, someone who began with my daughter in school and went through the school system, there's not any indication of any difference for people of these origins raised in Canada.
These are two large-scale studies completed. They have all sorts of fine things. Many of the studies otherwise are what I call anecdotal on the one hand, impressionistic on the other, or very limited in their data. One has to then weigh the one against the other.
I have asked for these studies I've come across to be refuted with proof, and they're very simply dismissed or ignored. To me, for the 17,000 businesses in Ontario and all these people having to be disrupted, the burden of proof is upon you to disprove the data I have, because you are the ones making change in our society. Yet no, neither the commission nor the minister nor my member nor the regional caucus of Niagara, will respond and say, "These are wrong because...." But the burden of proof is upon you to --
Ms Carter: Of course, once this legislation --
The Chair: Ms Carter, you're running out of time. I want to ask you whether you would like to have Mr Wiseman have a turn at a question or whether you want to complete it.
Mr Wiseman: Go ahead.
Ms Carter: Could I just make a further point? As this legislation comes into force, of course we shall find out whether what you're claiming is true, and everything we hear suggests to me that it is not true.
Mr Hueglin: I heard some years ago of people saying we should legalize marijuana, but the burden of proof was upon them, and it was not put in.
Ms Carter: I'd also like to ask you, finally, who you represent.
Mr Hueglin: I represent me. If you want to know of all of my varied activities in life, I'm a father --
The Chair: He's representing himself. Mr Wiseman, one final question.
Mr Wiseman: I've been anxious to put this story on the record for some time, and I think it apropos. I taught for 14 years in a school in Ajax, and it has become a multiracial school. I was elected in 1990, and some of the very first people who came in to see me were two young women. One happened to be black and the other one was white. The black one went into a store where they had a job sign posted -- incidentally, it was one of the stores that's listed in this Business Consortium on Employment Equity -- and she was told that there was no job. She thought, "I don't particularly like this." Being an enterprising young person, she sent in her white friend. Her white friend went in and got the job.
That is one of the stories. As a teacher who taught history and civics, the question I was constantly confronted with is: "How can we allow, as a society, this kind of discrimination to continue? What are we going to do about it?" It's not just that one story. If it were just the one story, perhaps I would look at it with some jaundice, but it's not. What I've heard from the students I taught is that this continues, it's rampant, and that they can't even get through the door.
Mr Hueglin: Did you take that to the Ontario Human Rights Commission?
Mr Wiseman: Yes, I did.
Mr Hueglin: Did the Ontario Human Rights Commission act on it?
Mr Wiseman: They are continuing to look into it.
Mr Hueglin: How long ago was it?
Mr Wiseman: It's about a year, a year and a half.
Mr Hueglin: My problem is this, right? It does take time in the Ontario Human Rights Commission, but if that firm were very quickly dinged for doing wrong, then that change would become more and more secure within our society.
Mr Wiseman: I don't agree with that --
The Chair: Quickly, Mr Wiseman; we're running out of time.
Mr Wiseman: -- because what they would do is they would find a more subtle way of doing it, as they have done in other places.
Mr Hueglin: Fine. Then you consider that they are flawed beings from the beginning.
Mr Wiseman: What I consider is that there is no protection for people who are going into these situations in order to get a job. There isn't the level of education necessary to tell these people that what they're doing is not in the best interests of society.
The Chair: Mr Hueglin, we have to move on to the official opposition.
Mrs Caplan: I have a question. I think the case Mr Wiseman just put forward speaks volumes to why this legislation isn't going to fix the --
Mr Hueglin: No, it speaks volumes to the inadequacy of the implementation of the Ontario human rights legislation as enacted. It is not the flawed law; it's the implementation.
Mrs Caplan: Is this a fair statement: that the creation of yet another bureaucracy, in your view, is not going to solve the problem either?
Mr Hueglin: That is correct.
The Chair: Other speakers?
Mr Curling: Definitely. Let me follow up on this. In your presentation, there are a lot of things I agree with and certain things I would like to have had more time to question you on.
I think you agree that this bill, as my colleagues have said, will not bring about equity in the workplace, and Mr Wiseman will tell you that the bureaucracy itself, the Human Rights Commission, has a backlog and all that.
I want to touch on the merit principle, because you stated that people will be judged on merit.
Mr Hueglin: They ought to be, and that's the way we really accept things, even though it isn't always done in practice but should be.
Mr Curling: Exactly. The term is "ought to be," and it has not been so.
Mr Hueglin: Yes.
Mr Curling: Of course, the Conservative Party will put the feeling that we don't need it. I believe strongly that the merit system should be enshrined in the legislation, but it has not been done. But having it in there I don't think would solve it anyhow. We have to have a plan in place.
Mr Hueglin: It's in the Ontario Human Rights Code as a principle.
Mr Curling: I strongly believe a plan must be put in place, and I'm agreeing with you that the ineffectiveness of the Human Rights Commission has made the situation worse. The bureaucracy can be tidied up, you are saying. Are you agreeing with us that we have something in place, the Human Rights Commission, but all that needs to be done -- not all, but if it carried out its duty, most of the systemic discrimination could be identified and dealt with.
Mr Hueglin: I would suggest approaching Russell Juriansz and asking him to take it over.
Mr Curling: Could you just comment, as the time we have is quite limited: "Though not universally accepted in theory nor honoured in practice, individual merit has become accepted as the ideal to which actions are squared," and you said, "Bill 79 and collateral legislation are destroying this consensus."
You feel that bringing in an employment equity bill that is meaningful and effective will address the issue. It will not address all the human rights issues; it is not intended to address the human rights issues. It's intended to put a plan in place where we can see that employers have a plan in place for access in the workplace. Do you think it's necessary to have that plan?
Mr Hueglin: I have to say this, relating back to something you suggested. The Ontario Human Rights Commission, as it's presently operating, is reaching down into corner stores with its tribunals. We are now going to have a Employment Equity Commission that has the power to demand that every business turn in its plan, a plan that is acceptable, and if not, at the extreme -- but I have to take the law as being in the possible -- could walk into a business and say: "We are taking over. We are appointing an officer who will put a plan into effect."
I simply do not trust people with that much power. Having seen what the Ontario Human Rights Commission is doing, we do not need another whole bureaucracy that will be able to come down on 17,000 businesses should it so choose. We have to focus upon getting to the individual, letting the person who steps out of line know, as Mr Wiseman said, that they are in for it.
He taught for 14 years; I've taught for 37 years. When students come into my classroom, they know what my rules are. They know that if they create problems they are in some difficulty. Some choose to come in and they live by the rules. Others choose not to come in. No one knows with certainty that that will occur through the Ontario Human Rights Commission, and to me that's where the focus should be: on making the existing bureaucracy work for the individual and, through them, the society, rather than creating another bureaucratic structure.
The Chair: One final question.
Mr Curling: My last question is, what do you think should be put in place, having recognized, as you said, that studies have been done that have shown these designated groups have been shut out? Whether you want to call it a plan that will put in reverse discrimination -- this is the kind of thing you use, and that the Conservatives also use --
An alarm signal sounded.
The committee recessed from 1110 to 1120.
The Chair: Mr Curling, I'd like you to complete that question, but as quickly as you can.
Mr Curling: I'm so quick that I took the opportunity to brief the gentleman so he could respond.
Mr Hueglin: There are two things, and the first thing is this: We have the Ontario Human Rights Commission which is a car that has been breaking down. We have a choice, and if I had my choice we would fix that car. It would appear that the direction of the government is that it is going to keep that car and it is going to buy a brand-new car, a larger car, a more intrusive car, which I disagree with.
If, however, the government proceeds, as I believe it undoubtedly will, then this merit principle ought to be in there so that there is equity for all. Without the merit principle, without capability being the operational choice of the business person, we are not going to be competitive. We are going to have problems developing.
This is again anecdotal, to use this term, Mrs Carter. I've talked with people in banks, and there are people who are hired who cannot do the job because of problems, and they have to circumvent it. We're in a competitive world and there has to be that merit principle there.
Interjection.
Mr Hueglin: No, I'm saying that unfortunately, there are those who are put in the position because of --
The Chair: Mr Hueglin, I'm sorry. We have run out of time. Please don't answer that other question because we've run out of time on this one.
Mr Hueglin: I'm sorry. I'm unaccustomed to these proceedings.
The Chair: That's quite all right. Thank you for your presentation here today.
Mr Hueglin: Thank you very much, sir.
NATIONAL ACCESS AWARENESS WEEK, ONTARIO COORDINATING COMMITTEE
The Chair: The National Awareness Week representative: You have a half an hour. We have another presenter after this. I would remind members that we need to keep within those prescribed limits; otherwise we will run way over time. Would you please introduce yourself? We don't have your name on the list.
Mr Paul Groh: My name is Paul Groh. I am chairperson of National Access Awareness Week, the Ontario coordinating committee.
National Access Awareness Week was created at the behest of Rick Hansen during his Man in Motion tour. It's a grass-roots organization that works at a community level. I represent the provincial coordinating committee.
The purpose of National Access Awareness Week is to increase access for persons with disabilities, specifically in six major areas: communication, education, employment, housing, recreation and transportation, and we are obviously here because of our interest in employment. We do not have a specific, formalized policy towards employment equity legislation, but because of our interest we got together and decided to make a presentation.
I should also say that in preparing for this deputation we did see some of the work being presented by Disabled People for Employment Equity and the Alliance for Employment Equity; there will be some themes in common although there will also be some themes different.
First of all, we would like to applaud the government's desire to write legislation enforcing employment equity. We feel that considerable thought has gone into the development of the proposed legislation, specifically in areas such as the definition of employment equity and the general principles of employment equity.
We like the idea of self-identification for designated group members, at least in principle, and we are pleased with the establishment of an Employment Equity Commission and tribunal. However, we do feel that the legislation can be strengthened in a number of ways, generally by including more employers, not excluding any specific employers, moving portions of the regulation to the act itself, defining clearer specifics and, where possible, moving those to the act also. There are a variety of miscellaneous matters dealing with Bill 79 as I have it here. I will go through those as quickly as I possibly can.
First is the inclusion of as many persons as possible under the employment equity legislation. I think the law must be as broad-based as is possible. I think that exceptions in either the act or the regulation will water down the effectiveness of the legislation.
It has been too easy for individuals, in the past, to avoid implementing employment equity, and we would rather see businesses put an increased effort into developing an effective employment equity plan rather than trying to get around the legislation, trying to avoid doing it.
One of our main concerns is that job definitions frequently defy employment equity implementation, so any exceptions in the legislation, if they are maintained, and I hope they're not, must be extremely carefully analysed, lest discrimination based on job definition be rewarded by inclusion in the list of exceptions.
Perhaps, instead of listing specific exclusions, specific reasons may be included in the regulations or in the act which may allow an employer to decrease employment equity for one or more groups, although I have to be careful there as well, because a sufficiently large organization should be able to accomplish accommodation in the broader employer's workplace rather than in specific areas.
Another thing that we've come across very frequently is cost discussions, and costliness of implementing an employment equity plan really is not an excuse; it's a required thing. We've decided that in the Human Rights Code. It's far too overrated and it simply isn't as costly as many employers think. Much accommodation, particularly for persons with disabilities, can be accomplished by redefinition of jobs, by reassigning job duties, and site accommodation is very cheap if it's a part of site remodelling. Additionally, the government already supports employers through its vocational rehabilitation services program, and that takes away a great deal of the cost.
Finally, work and progress on employment equity should also not be used as a reason for exclusion from the legislation. There are plenty of provisions currently in the regulations which allow one to continue one's employment equity work without having to start over from scratch.
What I've just stated specifically I would like to apply towards the act in subsection 6(4), the police exemption. I would like that to be looked at very carefully. Job duties can be redefined with the police. In fact, current employment equity investigations show that the police are particularly keen on bringing about employment equity in the force or in the forces.
I have a feeling that the main objection towards employment equity legislation within the police force is with respect to persons with disabilities. Whether or not that is the case, I can find no rationale whatsoever to avoid employment equity for aboriginal persons, members of racial minorities or women, and in fact, possible complaints about employment equity for persons with disabilities -- I can only find very tenuous justification.
In the same way I have difficulties in the regulation, sections 4(1) and (2), the exemption of construction workplaces.
Finally, we have real difficulties with the definition of "small business." We feel that the exclusion of small business from a great deal of the employment equity legislation will result in substantial loss of applying that law to a sizeable workforce, some 25% or so of Ontario's workforce. We suggest that perhaps the number that one uses to define a small business be decreased.
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That takes care of the inclusion difficulties. The other large area is that we would like to see a great deal of what is currently in the regulations moved to the act itself. There is a need to keep the basic legislation strong, and I think employment equity must be protected from an overly easy modification.
Most persons agree that employment equity is a right and it is enshrined in fact, in a way, in our Human Rights Code so there should be no fear of bringing it into the act itself. Most or almost all of the regulations are referred to in the act and could easily be moved into the act in those areas.
We feel that specifics such as the actual questions which should be asked on a questionnaire, the length of time one has to minimize discrepancies between one's workforce makeup and the greater potential working population, should remain in the regulation. Those are numbers, those are facts that can be changed. However, anything that has to do with the philosophy of employment equity should go into the act to give it the representation in government and to business that it requires.
When we went through the regulations to decide what we were going to suggest to move to the act, we found that almost every section fell into that list.
The workforce survey, that's part II, the review of employment policies and practices, the employment equity plan -- considering that the employment equity plan is what the act is all about -- should all definitely be moved into the act itself. Parts V and VI, the employees' participation and retaining and reporting of information, are not, in our view, as vital to be moved into the act. However, we can't think of any good reason to leave them in the regulations either.
We think it's required to give that strength of presentation to the public, to employers, in order to be able to actually accomplish some of the things that are in employment equity.
We also have a number of miscellaneous concerns with the legislation. One of our major ones is the concern of the discrepancy between a guarantee of confidentiality of information, because this is being done through self-identification, and the need for an employer to be able to match up questionnaires with specific employees. We think that disabilities such as psychiatric disorders, epilepsy, learning disability and AIDS carry a stigma that will cause some individuals who have these disorders to avoid self-identifying, thinking it might affect their employment, even if they would ultimately win on appeal to the Human Rights Commission.
One thing I'd like to add to that thought: While it's very nice to say that the Human Rights Commission is there and it'll support claims of this nature of discrimination, the process is long, it's tedious and a great many people do not want to go through it.
In a similar vein, in the regulations, section 10(1)(b) makes provision for employees to approach their employers to fill out the questionnaire again because they now feel included. Again, there's a confidentiality issue arising around that which may stop persons from self-identifying.
Also, another note, we feel that both the employer and the bargaining agent in the regulation section 18(3)(b) should be able to appeal to the commission. At the moment, at least in my copy, which is pretty old, I think only the employer has that right.
In the list of accommodations for persons with disabilities, in the regulation section 20(2), accommodations for disabilities are categorized into four groups. We advise adding a fifth, namely, job duty redistribution in the workplace as a whole.
In the regulation section 21, the employer sets numerical goals in the employment equity plan for the designated group in each occupational area or group, yet these numbers are set by the legislation itself. Basically, the legislation is to try to minimize the discrepancy between proportions of the various designated groups in the employer's workplace and in the population at large. Instead of setting out numerical goals, perhaps employers should be asked to implement a time plan, a time frame, in which the legislation can be brought into effect in his or her organization.
In the regulations, section 37 states that the employer shall consider the comments received from employees re policies and practices, but it does not actually give any way of checking whether the employer actually does so. Perhaps the employer should list in the plan what the comments received were and what was done about it.
Finally, in the regulations, section 40(4) states that an employer does not have to inform employees of a survey before carrying out a previous survey. This doesn't make any real sense because it refers to not having to inform somebody about beginning to do something which is already completed. It just seemed very ambiguous to me. Perhaps that can be rephrased.
In summary, we agree with the idea of the employment equity legislation. The greater part of our disagreement is that the proposed legislation very much relies on the employer's goodwill and decency in implementing a proper employment equity plan. We would like to see that made a bit harder. Also, the extensive use of the regulations to list important portions of the employment equity implementation weakens the legislation in general.
The Chair: Each caucus has five minutes. We'll begin with the government members.
Mr Fletcher: Thank you for your presentation. As you realize, the purpose of the public hearings that are going on is to listen to the submissions, and then at the end of the hearings we go over what people have said, and then amendments will probably be made. So I'd like to really go on record as thanking you for being here with some of your recommendations.
One of your comments was rather interesting, about how easy it was for employers to avoid employment equity plans in the past. This draft, as it moves along towards legislation, the way I perceive it is that it's one of the steps along the way to getting to where we want to be. To be able to walk in and instantly change something right off the bat is nice, but also has a lot of pitfalls, and we have to walk our way along. I'm looking perhaps to future years or even future months, after we see how this legislation is going. We'll get a working idea and then we can realize where some of the changes are.
I agree with some of your changes. I think we could have been a little tougher with the legislation. I agree with you wholeheartedly. We also have to have that perspective where we can look at every part and then, as the plan starts to move along, try and get things working in order so that the legislation does work for people.
You've had a lot of experience with people with disabilities and you touched on the cost factor. In your experience, you said that it's negligible, that it's not that much. Could you expand on that?
Mr Groh: First of all, I worked for a company that specifically dealt with access technology for the visually impaired and blind. We did a great many job assessments for VRS, which VRS paid for. We supplied equipment, where usually the employer would purchase the computer, which would have to be purchased for the individual anyway, and VRS would fund training on the specialized access technology. In reality, the cost to the employer was exactly the same as the cost for any other individual within that employer's company. There are exceptions to this of course.
One of the things I want to add with the whole idea of the cost is, first of all, that it's much less than most people imagine. Actually, through our own programs, an initiative of doing job shadowing with individuals who have disabilities, with employers, we found that most employers were surprised at how little it would actually cost to do it.
Furthermore, I don't think that the cost question really has any value. This is something which has to be done, period. Whether or not an individual employer would like to or would not like to spend the small amount of money that might be required, I think it's absolutely necessary for that employer to do so.
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Mr Fletcher: And you could do it --
The Chair: Mr Fletcher, I have Ms Carter on the list as well, just for you to remember.
Ms Carter: Carry on.
Mr Fletcher: Okay. You also mentioned the exclusion of the police services. They are covered under the Police Services Act with their own employment equity plans and that's one of the reasons, that they have their own separate act, that they're not in this one.
But I'm also looking at some of the other things that you'll probably be hearing as these hearings go on, that yes, everyone will agree, the opposition will agree, a lot of people will agree there's a need for employment equity; it's just the wrong plan. Going back to what I said previously about how we can walk along through the legislation and get to a certain position, is this the wrong way to go with this legislation?
Mr Groh: If the amount of things that are currently in the regulations are left in the regulations, I think it might be. I think the principles behind the legislation as a whole, the combination of the bill and the regulations, gives a workable employment equity plan for the entire province. I'm afraid that it is too easy to change what is in the regulations if there might be another government in the future.
Mr Fletcher: Then we have our work cut out for us.
Mr Groh: Yes. I think we would end up having to refight the battles that are currently there. I feel a little uncomfortable with giving as much weight to the Lieutenant Governor in Council being able to define employment equity. I think it has to be something defined, argued once in the House, and then minor modifications can be allowed. It's a good plan, but I would like to see it strengthened. I would like to see a stronger statement.
The Chair: Thank you, Mr Groh. Official opposition members.
Mr Curling: Just a matter of emphasis, where you left off is exactly where I'd like to start. You are agreeing with Mr Fletcher that the legislation is weak.
Mr Fletcher: Mr Fletcher didn't say that.
Mr Tilson: I thought I heard that.
Mr Groh: Actually, I said that. I think that leaving those parts of the regulations which are currently there in the regulations weakens the initiative towards employment equity. I think they're fine directives in many ways, with some of the modifications I suggested, but I think that they can gain weight by being moved into the act itself. In other words, move what's in the regulations right now to the act. Give it body.
Mr Curling: So the next question then is what you saw -- I'm just repeating what you said. Mr Fletcher didn't say that part. I hope you'd agree. What you saw in the regulation would strengthen the legislation. I know you said it. I just want to be very plain on that.
Mr Groh: If it is moved into the act itself rather than being left in the regulation, I think we will have a stronger bit of legislation.
Mr Curling: You know the government itself said that the regulation is not for debate here. It may be commented on but not debated or changed. They also said, "That's why we listen, and the consultation, and then we go back and change" -- the whim of the five or six members there who will decide if they will change it. But this committee would like to see -- I myself want to see -- a strong employment equity bill. A weak one would not accomplish a thing. As a matter of fact, it will work in a rather reverse way in acquiring the things you would like to see for access to and employment in the workplace.
Mr Groh: But, in all fairness, the fact that whoever put this set of regulations together, I'm not worried so much about them because they've produced this regulation; I'm worried about what happens to them if they change their mind in the future or what happens to other people who might come along in the future. Also, regulations tend to be hidden from the employers who are going to have to enforce this thing.
Mr Curling: Well, the bureaucrats have put this together, of course. I feel too that if -- I just want -- this is what I am fighting for. I am a strong believer in employment equity because of the evidence that's shown of people who are shut out of the workforce. I think it will enhance the economy, it will enhance the employer, because the people who are being deprived out there are people who can contribute. So we have dealt with the merit. I'm quite sure that those who will be let into the workplace are qualified individuals.
Do you think it is necessary for us to debate this legislation without the regulations?
Mr Groh: Do you think it's necessary for you to debate the act without the regulations?
Mr Curling: Yes.
Mr Groh: I think that then the act would be relatively weak. I think that it's important to implement a great deal of the regulations into the act in order to give it the body that we would like to see it have.
Mr Tilson: I appreciate your comments on some of the issues of vagueness of the legislation, specifically with respect to the goodwill, that much was being relied on the goodwill of the employer.
There have been others who have told this committee, and comments that have been made in the House, that there is as well all kinds of other vagueness in the bill that is being left: for example, the vagueness with respect to employees, that when they fill out their survey -- I think that's the terminology for it -- it is the sole discretion of the employee and it cannot be challenged by the employer as to whether they're disabled, whether they're a visible minority, I suppose whether they're a woman. It could go on and on, I suppose.
With respect to the visible minorities and with respect to specifically disabled, therefore, the legislation is relying on the honesty and goodwill of an employee who in many cases in this province is in dire straits. They're fearful of losing their jobs, they're fearful of not being able to get a job and may be prepared to do almost anything, particularly taking advantage of loopholes in legislation such as this.
I'd like you to comment because you've obviously read the bill and you've obviously spent some time on it and the draft regulations. Could you comment on other areas that you feel are being left too much to vagueness and goodwill?
Mr Groh: First of all, I'd like to comment on the concept of self-identification. I think it's absolutely required. I think there's no way around it whatsoever. One of the definitions, at least in the Advocacy Act and in other legislation, is that a disability is basically something which someone perceives as a disability. Therefore, if someone does think they are disabled, have a disability in some manner or other, we have to take their word on that particular issue. That I think is not really open to question.
Mr Tilson: Can I stop you on that? I understand what you've just said, but my question is, why do we have to take their word for it? Someone could say they're disabled and they're clearly not.
Mr Groh: Yes, but if I remember the exact wording of the Advocacy Act, I believe it says something such as anybody who has a disability, whether physical or mental, whether visible or not seen, whether perceived or actual. The thing is that if people feel themselves to be disabled, then they are and they do in fact have a disability.
Mr Tilson: And that's the problem because we're talking about partnerships, a wonderful word that was conceived by this government, I believe, and it may be a legitimate word. We are talking about sharing our problems more with employees, with workers, with landlords, with tenants, with all different groups, depending on which piece of legislation you're looking at, and clearly this is one.
The difficulty is, there doesn't seem to be any challenge to something that the owner of the business, the employer's business -- you have commented on that, that we have to rely on the goodwill of the employer, and I simply say, I may agree with you. I don't know whether I agree with you on all of the sections you refer to, but I agree with you on some of them, that there must be ways of challenging that.
Similarly, I raise the question, if these people are trying to run this business, there has to be some policy, some accuracy. We just can't rely on the goodwill of people to say that they are such-and-such, whether perceived or not.
Mr Groh: I can't understand why the employer would be upset with an individual declaring himself disabled or not. I might be upset --
Mr Tilson: Why, sir? Because subsection 50(2) is going to say that this government is going to assign to bureaucrats to determine that there must be such-and-such a percentage of the very designated groups. That's why they should be concerned.
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Mr Groh: But the business isn't going to care, because the business is going to have all the numbers it wants from employees who have self-declared disabilities.
Mr Tilson: I agree except the flaw in it is that they may --
Mr Groh: It's wrong for the community of disabled persons.
Mr Tilson: I'm sorry sir, would you repeat that?
Mr Groh: I can see a major flaw. This could be an argument perhaps for the community of persons with disabilities.
Mr Anthony Perruzza (Downsview): On a point of order, Mr Chair: My point is that there's this dialogue going back and forth and not going through the Chair, right?
The Chair: It isn't a point of order, Mr Perruzza, I'm sorry. Continue, please.
Mr Tilson: Can't I talk to him?
The Chair: Mr Tilson, continue, please.
Interjection.
The Chair: Mr Perruzza, it's not helpful.
Mr Tilson: I want to talk to him.
Mr Perruzza: You're not listening to me.
The Chair: Mr Tilson, if you address yourself again as a final question to the deputant, that would be helpful.
Mr Tilson: One other question, because you commented that you support in general the principle of this legislation. My question to you is, is the Human Rights Code adequate? Is the Human Rights Commission doing its job? If not, could not amendments be made to those pieces of legislation that would deter even further discrimination of any sort of these various groups?
Mr Groh: I do not think that the Human Rights Commission is sufficient for the purposes of employment equity. I think it becomes a roundabout way of trying to enforce something which has been agreed to by pretty well all parties in question.
I think that one has to have the actual employment equity system in place at the government level, something which employers can approach, something which employees can approach, in order to be able to really give it some bite. I think that trying to do it via what must be considered a third party is going to end up weakening or lengthening argument.
The Chair: Mr Tilson, we have no more time. I do want to ask of the members, Mr Winninger would like to make a technical point on a matter that Mr Groh has raised, either through a point or a question that needed some clarification. Do we have unanimous consent to do that?
Mr Tilson: As long as it's off their time.
Mrs Caplan: No.
The Chair: Thank you, Mr Groh.
COALITION FOR LESBIAN AND GAY RIGHTS IN ONTARIO
The Chair: Next is the Coalition for Lesbian and Gay Rights in Ontario. Welcome, Mr Mulé. We have half an hour. You know how it works. You can begin any time.
Mr Nick Mulé: Good morning. As a spokesperson for the Coalition for Lesbian and Gay Rights in Ontario, it is important that I express the anger that is felt by lesbian, gay and bisexual communities across Ontario with regard to the proposed Employment Equity Act.
The basis of this anger stems from the fact that our provincial government has actively engaged in a process of excluding lesbians, gay men and bisexuals from a proposed act that ironically has the word "equity" in its title, this despite our consistent dialogue with the government on this issue.
If our government intends to bring forth Bill 79 in its present form as a major contributor to the development of human rights in this province, it will lack moral teeth and ethical strength. Our communities will hold this government responsible for engaging in an act of discrimination, for that is precisely what is happening here.
I'm going to move on now into some of the arguments that were put forth to us as to why we were excluded and then from there get into the recommendations.
One of the issues was that there is a lack of research to actually pinpoint that gays, lesbians and bisexuals in Ontario do suffer from systemic discrimination in the workforce. Our response to this is that's really a catch-22 that we're placed in, because no past government nor the current government has ever taken the time to ask those specific questions of our populations in this province. If any government is willing to do that, it has to be very prepared to deal with the sensitivities of our communities, because many people are not prepared to come forward to researchers about their sexual orientation.
A second issue is the quantitative targets. There's a strong emphasis in this proposed piece of legislation to come out with numbers for equitable representation, which we support. But specific to our issues and our concerns, we are not fighting to be included in this for the quantitative reasons; we're fighting to be included in it for the qualitative reasons.
The government was concerned about outing members of our communities in order to reach certain goals. We don't feel that's an issue, because again we are focusing on the qualitative side of things and there's also protection in the act in and of itself that people can volunteer information about themselves. So we're protected in that area.
A third argument has been the anti-harassment provision. We've been told by the government that there is an intention to bring us in under the anti-harassment provision of the Ontario Human Rights Code, which is long overdue, but we don't see this as a replacement for this piece of legislation. Other groups have this protection and they're being brought forward under employment equity. We don't feel that we are any different with regard to the kind of protection we require as well.
Also, it has been mentioned that when diversity education with employers takes place, this government intends to cover all the characteristics that are pointed out in the Ontario Human Rights Code, which would include sexual orientation. Although on the outset this can be seen as something positive, we are alarmed by the fact that if you are educating employers to be sensitive to our needs and yet they turn to the black-and-white copy of Bill 79 and find we're not listed, it sends a mixed message and ultimately puts forth the message that when it comes to sexual orientation we do not require or warrant the same protection this piece of legislation could provide us, and we disagree with that.
I want to point out as well that we do support the principles of this act. That's why we want to be a part of it. Gays, lesbians and bisexuals find themselves in the four designated groups as it is, but those people are really resentful of the fact that they have to compartmentalize themselves in order to receive certain kinds of protection.
In other words, what's happening is that the message coming forth is: When it comes to your sexual orientation you must closet yourself by being female or of aboriginal status, disabled or from a racial minority group that warrants protection, but just hide what your sexual orientation is, and that's not acceptable.
I'm going to move on now to the recommendations, and we have eight of them. These are also revised from the original brief that we submitted in October 1991.
(1) Ontario's commitment to achieving employment equity must specifically include equity for lesbians, gay men and bisexuals. The four designated groups included in employment equity guidelines -- aboriginal people, people with disabilities, members of racial minorities and women -- should be expanded to include lesbians, gay men and bisexuals in the preamble and all sections that deal with qualitative goals and measures.
This is necessary because of the pervasiveness of heterosexism, homophobia and biphobia in Canadian society. It is particularly needed in light of the omission of sexual orientation from the grounds of discrimination, specifically prohibited in the Charter of Rights and Freedoms and the Canadian Human Rights Act.
(2) The Employment Equity Act should contain a general statement of principles against discrimination in the workplace. This statement should make explicit reference to heterosexism, homophobia, biphobia and discrimination on the grounds of sexual orientation.
(3) The Employment Equity Act should require employers to provide for all their employees a positive work environment free from discrimination on all the grounds set out in the Ontario Human Rights Code.
(4) The Employment Equity Act should provide the Employment Equity Commission with a mandate to undertake public education designed to promote equity in workplaces. The act should also contain provisions to ensure that adequate government funding for such education is readily available.
(5) The act should adopt regulations or guidelines on public education designed to promote employment equity. These regulations or guidelines should provide for consultation with communities affected by the provisions of the act and for their participation in such education activities. The components of a public action strategy should include:
-- Government sponsorship of seminars and other activities directed at employers to promote acceptance of employment equity and to encourage the maintenance of positive work environments for employees.
-- An acknowledgement that the categories set out in the act are not mutually exclusive, so that employees may be affected by discrimination or barriers to advance on more than one ground.
-- Written materials on employment equity including materials that deal specifically with heterosexism, homophobia and biphobia in the workplace; government-funded research into issues related to heterosexism, homophobia, biphobia and sexual orientation discrimination in the workplace, including the collection of data on the numbers of lesbians, gay men and bisexuals in Ontario's workforce, and this data must be collected in a manner which ensures the confidentiality of respondents.
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(6) Employers in Ontario should be mandated to carry out the goals within the timetables as stipulated in the Employment Equity Act. Thus, the Employment Equity Act should contain effective mechanisms for dealing with employment inequities; the emphasis should be on removing discriminatory treatment or practices rather than merely mediating disputes between parties. There should also be significant penalties for violating the provisions of the act.
(7) Those sections of the Ontario Human Rights Code which prohibit harassment in the workplace should be amended to include harassment on the basis of sexual orientation.
(8) The definition of "spouse" and similar terms in various Ontario statutes should be amended to provide legal recognition to same-sex spousal relationships.
The Chair: Thank you, Mr Mulé. We have seven minutes each per caucus. Official opposition members begin.
Mr Tim Murphy (St George-St David): I have a few questions, if I may. First of all, thank you very much for your presentation, and I appreciate it. I think it's an excellent one. I read the We Count report before, as you know.
I asked the minister yesterday why in fact gays and lesbians were not included as a designated group and I also asked why not francophones, and in the minister's answer I heard a willingness to include the francophone community if there were sufficient data. I'm not sure I heard the same willingness in regard to the gay and lesbian community.
Perhaps we'll hear differently, but two issues were raised by the minister in the response. One was the issue of self-identification as a barrier to inclusion, and the second was the question of information about whether in fact gays and lesbians were a group that was suffering from discrimination in the workplace and as such needed an access to an employment equity legislation. I'm wondering first of all if you can just comment on those two reasons for not being included in the act.
Mr Mulé: Sure. As I mentioned in the arguments, it was put forward to us by the government that it was concerned about this act potentially outing people in order to identify themselves. But the act itself protects employees from this, and it's a perfect fit for our communities. If you look under part III, subsection 9(2), where it talks about the voluntary giving of information, if people are prepared to be out about their sexual orientation, they can be honest about that; if they're not, they can choose not to divulge that information. So it's not really an issue for us.
Your other concern about whether in fact we do suffer consequences in the workforce, once again it's an issue of research, and that's a multi-issue because it has never been done; no government has bothered to ask the question. Secondly, one has to be very careful with that because of the sensitivity of people feeling confident enough to come forward about their sexual orientation. But again the emphasis here is on the qualitative measures, not the quantitative, so that's really the main emphasis.
Mr Murphy: Can I ask, just to follow up on the information, does your organization or do any others have any even anecdotal or other kind of information about what you feel to be the discrimination in the workplace against the gay, lesbian and bisexual community?
Mr Mulé: There is a lot in terms of what we hear from our phone lines and support groups; you get a lot of it. It can be from really subtle things: a straight employer taking in applications and interviewing people and his or her concept of what a gay, lesbian or bisexual person is. If they assume the person is, they may choose not to offer that job to that person without really knowing, and that's a real issue. If people fall under what one would call stereotypical characteristics, they can find themselves having a hard time finding work.
Another example, a really hard-core one -- this was is just a matter of months ago: The Sexual Assault Centre in Hamilton advertised a position as coordinator of volunteer services in which it listed refugee women, disabled women and from racial minorities; they had the whole listings there, aboriginal women, as well as the word "lesbian" in there. The social services subcommittee of regional council in Hamilton-Wentworth threatened to hold back $17,000 unless they removed the word "lesbian" from their job ads.
This is an example of what we're talking about, where something that could be really affirmative, something that affirms our existence, gets that kind of backlash. That is pretty serious, and lesbians do get sexually assaulted. There's that issue as well. We can hold a real place in the work that we do.
Mr Murphy: I would think it's probably fair to say that in many cases where an employee comes out of the closet in the workplace, that represents a real barrier to that individual for, in some cases, effectively working in the workplace, certainly to promotion. Have you found examples of that in your experience or in your organization's experience?
Mr Mulé: There can be many of them. That's why there's a lot of silence. That's why there are a lot of people who won't come out. The protections are not there. They just don't exist. There is a real fear of some real reprisals if one comes forth with that, and it's really difficult. It's got to do with some real subtle things in terms of poisonous work environments as well. Something as simple as a social event organized by an employer for people to go to, there is an expectation that people show up with their wives or their husbands, but that's not our reality, and it can be quite a statement if we show up with our same-sex partner, and a real risk at that.
Mr Murphy: You talked about the qualitative measures and I think that's an important focus, because if you're looking, as you say, on the application, if the gay and lesbian or bisexual community was included as a designated group, the targeting of goals for hiring by an employer would obviously have the result of targeting individuals who would then be identified in the workforce. It seems to me that if that were going to be the case, either it would be a very courageous individual, often, given the reality of many of the workplaces, or -- and I think this is where your focus is correct -- the qualitative measures to make an education.
I notice you focused a lot on employers and I think that's important. One of the things I wanted to talk to you about also, though, was the education of fellow employees in the workforce and what you thought could be effective in that regard.
Mr Mulé: Like I pointed out in the recommendations, the Employment Equity Commission took that on and did it in a responsible way in terms of consulting with our communities about what exactly needs to be the content of that education, utilizing members of our communities to go out there and do the education. It would be really quite helpful. You know, that doesn't even exist now. That would be a first step, and a very important one.
The Chair: Thank you, Mr Murphy. You ran out of time. Third-party members?
Mr Tilson: Yes. I was looking through, sir, some of your group's recommendations, and I was also thinking of your concern about the issue of self-incrimination and why individuals should not be required to say whether they are gay or not gay or whether they are lesbian or not lesbian.
My question to you is, does that make that type of discrimination different than the discrimination with respect to aboriginals, disabled, women and visible minorities? In other words, with this type of discrimination, wouldn't it be more appropriate to deal with the discrimination that you have commented on and the discrimination that you deal with in these various types of regulations with respect to the Human Rights Commission as opposed to an Employment Equity Commission? Can't many of the problems you have raised, and even some of the examples you've raised, would those issues not be more appropriately done by the Human Rights Commission?
Mr Mulé: I don't think that would be enough, and one just needs to look at the four designated groups. They've been covered by the Human Rights Code for a long time, much longer than we have, and we've come to the realization that systemic discrimination goes beyond that, and we're experiencing the same thing.
Mr Tilson: Except the difference with those groups is that they are being asked specifically to identify what they are, in other words, whether you're a visible minority, whether you're a woman, whether you're a whatever, whereas you have made it quite clear that you -- when I say "you," the group that you represent -- could not participate even in that survey because that question should not even be asked.
Mr Mulé: It could for some people in our communities. No, my main point is that in subsection 9(2) anyone, regardless of whether you're gay or not or if you're a female or what have you, you're asked a question. It's up to you whether to answer it or not, and that goes across the board. So it sits quite well.
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Mr Tilson: Mrs Witmer has a question, but I do have one other question and it had to do with the area of education. I think it could be applicable to all groups, because the government certainly with this legislation is requiring that the private sector would assume the responsibility for employment equity rather than addressing the educational equity issues that are primarily this province's responsibility. In other words, I don't know what measures the government has introduced to ensure that members of the designated groups, the groups you represent or any other groups, whether they be francophone or any other groups, have access to education and training programs. Could you comment on that?
Mr Mulé: I'm not sure what your question is.
Mr Tilson: My question is that we allege discrimination of all kinds of groups and people and individuals, whether it be minorities or not minorities, yet we're talking about educating a society or trying to put other people's views, whether it happens to be your gender or the colour of your skin or disabled or your sexual orientation. We're passing a law -- not we, these people are passing a law -- that isn't going to deal with that because there doesn't seem to be any specific action taken by this government to ensure that members of any groups have access to education and training programs with respect to their specific fields.
Mr Mulé: I see. I think it's imperative. To answer that, I think it's really important. I think this government needs to take action on ensuring that there is education out there.
Mr Tilson: I'm getting back to the favourite issue of our party, the Progressive Conservative Party, that of merit. That's one of Mrs Witmer's questions and I should let her ask it. But that's a major concern, just to make the system work. As to what your sexual orientation is or what the colour of your skin is or what your gender is, surely the issue is, are you qualified for the job?
Mr Mulé: My understanding of this act is that that's always been the bottom line. You shouldn't sacrifice whether you're qualified for the job for something else. My understanding is that you don't sacrifice that. At the same time, I think people need to understand as well that there are great merits that women bring to their jobs, that people of colour bring to their jobs, that disabled people bring to their jobs, and aboriginal people, as well as gay, lesbian, bisexual people. I'm a professional in the health care and social service fields and those fields are a shambles when it comes to supporting our issues and our needs. We can be utilized in many ways to help straighten out a lot of the concerns that have arisen out of the mess that's taking place. That's only one area, and it's happening in many areas.
Mr Tilson: But that's civil rights, not employment equity.
The Chair: Mr Tilson, we've run out of time; we need to move on.
Ms Carter: As has been mentioned, the minister did discuss this matter yesterday when she made her presentation; I guess you weren't here at the time. She said that when she spoke to people, especially from the gay and lesbian community, of course they were concerned that there be no sexual harassment in the workplace, as we all are, but most of the comments we received back were that they were not ready to self-identify. That is one reason they have not been included in this legislation, because the feeling was that it would not be effective because people in that category would not self-identify. Obviously, it's voluntary, as you've pointed out, but if people don't take advantage of that, then it doesn't as a group do anything for you.
The other concern is that there simply isn't the statistical information available that there is about other categories, so if you're looking at a workforce reflecting the community there'd be very little to go on in this instance.
I think we all agree that we have to work on educating employers and others and getting rid of homophobia and that kind of positive action, but it does seem as though the emphasis in this issue is not so much on hiring, because probably this wouldn't enter into a hiring situation in most instances, but on the harassment that might happen once the person is in the workforce, and that, as has been mentioned, I think, will be dealt with in the anti-harassment provisions of the Human Rights Code. I just wondered if you could comment on those reasons for not having it in the act.
Mr Mulé: Okay, if I can remember all three of them. Your first point is about disclosure, that the minister was saying there are people not prepared to disclose. That's a reality in our communities: There are many who aren't prepared, because that's how intense the oppression is.
But when you were saying to take advantage of something, we can't take advantage of something that's not there, so if we're not going to be a designated group there's nothing to be taken advantage of in terms of coming forward with our sexual orientation. If it's not going to be asked, then those of us who are prepared to be out don't need to point it out. On the other hand too, there are many people considering coming out, and this piece of legislation can be seen as measures of protection they are able to lean on, because there's nothing there right now and there can be some really serious consequences.
Ms Carter: I guess that wasn't the impression the minister got from her consultations, so it seems to be a question of the emphasis of the person who's talking.
Mr Mulé: That really surprises me, because I was involved with those consultations.
Ms Carter: If it would provide a framework whereby people felt safer coming out, then I think that would be positive, but if, even after whatever educational process there is about filling in these forms, people didn't feel confident, then it would be largely selfdefeating.
Mr Mulé: I think the main point is to give our communities that choice, and it doesn't exist right now. That's the main point on that issue. If we're not going to be designated, then we don't have that option to give an answer or not. There's a message already coming out: "You don't warrant this protection."
Ms Carter: I don't think that's the message. I think part of the message is that we have a lot of work to do on this one, and I think this government is being very proactive on the educational side.
Mr Mulé: Once again, if I can emphasize, it's a mixed message. Even if this educational side does come to be, down the road -- it's not happening right now -- it's a mixed message to employers. You can educate all you want in seminars, but when they go back to following the regulations in the act, we're not even mentioned, and that's quite a message that's sent out there.
Ms Carter: But we have the anti-harassment provisions, which is another important component.
Mr Mulé: To address that, again we really don't believe that would go far enough. We see the antiharassment provision as an important one and it's long overdue, but at the same time it doesn't replace the protections that would be in place with employment equity. We don't see anti-harassment as adequately addressing systemic discrimination. It just doesn't. I mean, we're talking about harassment; we're not talking about all the other things.
Mr Winninger: Just briefly, because Ms Carter covered a lot of the points I wanted to cover with you, when you were asked, I believe it was by Mr Murphy, for anecdotal evidence as to when discrimination might have come into play in gay or lesbian employees being barred from hiring or promotion and so on, you gave a couple of examples, but one was more of a social nature. You mentioned the traditional office party where employees are expected to turn up with their spouses, usually heterosexual couples.
I think you'd agree with me that this kind of discrimination that's very subtle and really hard to get a handle on exists out there and has to be dealt with, but that kind of discrimination in a social setting, for example, is not what employment equity is about, as defined in this bill.
Getting more to the point, if you don't have demographic profiles, if you can't create the snapshot you need to determine what percentage of the community is made up of gay and lesbian members, what per cent of your workforce is gay and lesbian, and people are reluctant -- some are willing to self-identify, others aren't -- how can you build a structure that will enable you to implement employment equity precepts when you don't have a sound basis to do it with?
From your point of view, you may see this government, because it hasn't targeted gay and lesbian people, as sending out a message. I would put it to you and ask for your response about whether the problem doesn't lie somewhere in between this government and the community you're speaking for today, in that we don't have the tools we need to adequately address employment equity other than for the four designated groups mentioned in the legislation.
Mr Mulé: I think the tools are there; it's just how you use them. It takes a lot of sensitivity. If there's a problem that lies anywhere, it may be between the government and society, because our reality is that we all can't be out because there are serious repercussions for coming out in this day and age still. I don't think we need to take responsibility for that. I think it's the homophobia and heterosexism and biphobia that exist in society. As I have mentioned, we would not be seen as similar to the four designated groups because there, there are goals you're after, and I understand that. We're just asking for the qualitative protection.
Mr Winninger: We can deal with individual complaints at the human rights tribunal, but to deal with it systemically we need adequate demographic information and we need adequate momentum from your community. I don't believe we're sending out the wrong message. I think we're just saying to you that this is an area that has to be subject to further review.
Mr Mulé: I'm not so sure. Is the issue, does this government really believe that we don't suffer from systemic discrimination? I find that fascinating. Do you really believe that?
Mr Winninger: That's why we have the anti-discrimination provisions in the legislation that your community will benefit from. All employees will be treated equal.
The Chair: Mr Mulé, if you want to make a comment, please, without asking questions, because we're running out of time. One final comment on your part in response.
Mr Mulé: Just to clarify, all we want is the protection of all the qualitative measures in this act, and if we are going to be included as a designated group, it shouldn't be seen as identical to that of the other four groups. It's the qualitative measures that we're focusing on.
The Chair: Mr Mulé, thanks for coming and for participating in these hearings.
Mr Mulé: Thank you.
The Chair: As a reminder to the subcommittee members, it's 1:15 in room 110, and we'll resume these hearings at 1:30.
The committee recessed from 1222 to 1334.
EMPLOYMENT EXCELLENCE
The Chair: I call the meeting to order. We have Mike Buckborough as the next presenter. Please come forward. Mr Buckborough, you have half an hour for your initial comments and I hope you leave enough time for people to ask you questions. You can begin any time.
Mr Mike Buckborough: Just to check, we were short on time preparing our briefs. We have two briefs. I hope all the members have copies of both.
The Chair: They'll be handed out. Go ahead.
Mr Buckborough: I represent an organization called Employment Excellence. I'm not going to go through the whole written brief, the first one I have, because I came up with something last night that I thought was more appropriate.
Employment Excellence is an organized movement that was formed in August 1992 in Niagara Falls to combat government-imposed quotas in relation to hiring and promotions. Employment Excellence has continued to expand our membership and we now have chapters in every major rural area in Ontario. Our provincial directors meet in Niagara Falls, Ontario, and we have members from both genders and all ethnic backgrounds. Our sole objective is to put an end to government-sanctioned discrimination in hiring practices, including Bill 79.
Employment Excellence believes that Bill 79 is a violation of human rights that will only divide our society into various ethnic groups and has also been based on erroneous information. Employment Excellence recommends:
(1) Bill 79 be completely discontinued.
(2) The Ontario Human Rights Commission should be strengthened to effectively and efficiently deal with all accusations of discrimination in the workforce. This would ensure that individual cases of discrimination are reduced.
(3) The government of Ontario recognize that all residents of the province of Ontario should be treated equally without regard to race or gender or ethnic origin. This will not happen if Bill 79 becomes law.
If Bill 79 does become law, we feel there'll be several negative effects of this legislation.
First, a message will be sent to all residents of Ontario that merit alone will no longer be the basis for hiring and promotions in the province of Ontario. We believe that excellence and merit should be the only factors in determining who gets hired and promoted in an occupation.
Second, we feel that members of the designated groups will start to second-guess their abilities and qualifications, wondering whether they have been hired because of their merit or because they happen to belong to a certain target group.
Third, young white males will become even more discouraged about their futures. At present the unemployment rate for young white men is almost double the national average at 22%. This will send a clear message to young white men that the standards for them are not the same as the standards for members of the chartered groups. Employment equity programs and fire departments have already shown that standards will sometimes be compromised. This was the case with the Kitchener fire department, which lowered its standards for members of the chartered groups.
Bill 79 is also based on the presumption that members of the chartered groups are being discriminated against when they are applying for jobs. We feel the government has offered no proof of this and automatically assume that those doing the hiring in Ontario businesses are racist and sexist. We have a page which is attached that lists eight figures and stats that we've researched. The sources are listed there. These stats indicate that young white males are not operating at an advantage in the workforce as we've been led to believe.
It's also clear that Bill 79 will have a very negative impact on the province of Ontario. The business community will suffer, the merit principle will be jeopardized, members of the chartered groups will begin doubting themselves and it will have a devastating effect on young white males. The only reasonable solution is to scrap Bill 79, strengthen the Ontario Human Rights Commission and send a clear message that racism, including reverse discrimination, will not be tolerated in the province of Ontario.
That's the brief on behalf of our group. Last night while I was at home going over the presentation for today, I decided to come up with something other than what we have here. You'll have to forgive the typographical errors; it was printed up at 4 o'clock this morning. I was up all night doing this, so I'd just like to go over this. This here basically tells you why I started this organization and why so many people, especially young white males, are getting involved in our organization.
I'm 21 years old and entering my third year at Brock University, and quite frankly I'm worried about my future, as are most young people in the province. I come from a single-parent home and have always had to work hard for anything I've wanted. I've never asked for anything for nothing. I go to university full time, have a full-time summer job and work two part-time jobs in the winter to pay for my tuition. When I entered university, I was of the opinion that my hard work and good grades would land me a career that I wanted. Three years after beginning university, I no longer have this opinion.
Two years ago, I decided I would pursue a career in police work. One of the first police forces that I contacted was the OPP. To my surprise, the officer at the desk told me I didn't have a hope in hell of getting hired. When I asked why, he turned around and pointed to a recruiting poster on the wall and asked me if I saw any white males in the poster. I looked at the poster and I said no, and he told me this was why I would never get hired. He said the OPP was only interested in women, visible minorities and aboriginals. At first I didn't believe him, but I soon found out that he was telling the truth.
The next day, I received a letter from another police force which contained a form which is similar to this one, and I've attached a copy. This is called the Police Services Employment Equity Applicant Survey Form. I'm not going to go over the form; it's self-explanatory. Basically, this is required for every applicant to fill out who applies to a police force in Ontario. This is the only application that most police forces are interested in in the early stages of their recruiting.
When I contacted the police about this form I was told they are required, under the Police Services Act, to distribute this because they had quotas to fill. When I asked what would happen if I didn't fill out the form -- it's supposed to be a voluntary form -- the officer told me I would never hear from them again. He also told me that they weren't interested in white males, so he suggested I forget a career in policing.
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Not only is it extremely unfair and racist to have quotas on police forces, the required form which is given to all candidates doesn't even list white males. There's nowhere on this form that lists white males. I found this strange, when up to 90% of all applicants to police forces are white males and they're not even listed.
Do you know what it feels like to work hard for something and be told you can't be hired simply because you're a white male? I honestly don't think you do, or you wouldn't be proposing a bill like Bill 79. When I received this form I was shocked and mad, but most of all I was discouraged, confused and I even considered not going back to complete my university education. And I'm not alone. I've spoken to so many young men and some young women about reverse discrimination and there's widespread anger and discouragement out there.
Quite simply, affirmative action is wrong. It's wrong because it treats white males like second-class citizens and promotes discrimination. In fact affirmative action is nothing less than government-sanctioned discrimination. None of us like discrimination, especially when the government supports it. In the case of Bill 79, the government is creating it.
If Bill 79 passed, employment equity survey forms like this one would have to be handed out in almost every job opening in Ontario. Employers will have to be able to keep track of every applicant's sex and skin colour and that is how they will decide who is hired and who is not. The government will no doubt say this will not be the case, but this is exactly what is happening with the police forces right now. As far as this form is concerned, white males don't even exist, and if white males were listed on the form, gender and ethnic background should never be considered a factor in filling job openings.
As a young white male, I beg of you to reconsider this legislation. I'm willing to work hard to be successful, as are most of the young people in Ontario. The white males in this province are becoming increasingly worried about this legislation, and if the government has any sense of decency, it will abandon this horribly destructive and racist piece of legislation.
The Chair: Thank you very much. We have approximately five minutes each per caucus. We'll begin with the official opposition members.
Mr Curling: Thank you very much, Mr Buckborough, for your presentation. I want to say to you too that I would be concerned if I interpreted the bill as you have interpreted it. I would be concerned if I was a white male. But I think we should understand what the intention is all about.
First, maybe I should correct something that you have said. You said that firefighters, I think it was in Kitchener, would lower standards in order to accept a minority within the firefighters' regime. Did you understand it to be that? Did they really lower standards?
Mr Buckborough: Jake Smola, who was -- you may be aware of him. He has filed a complaint with the Human Rights Commission. He's a member of our organization. I've spoken with the Kitchener fire department. When they did the initial application and the written testing with the Kitchener fire department, white males were required to have a higher score on the written testing than were females, aboriginals and minority candidates. There was a higher grade that was required for them to pass than there was for aboriginals, minorities and women. There was a difference in score that was required to pass.
Mr Curling: This should be explained and corrected, because, as I understand --
Mrs Witmer: It has been. The Kitchener council has changed it.
Mr Curling: As I understand, the individual himself, then once qualified within that category to obtain the job -- and the standards were not lowered. The person may have got a lower mark, but the standards were not lowered.
Mr Buckborough: No, that's not the case. The way that police forces and fire departments do their testing is they have different stages. The first stage is a written test. In order to go to the second stage, you must get a successful score on the first stage. In order to pass the first stage, white males -- or at least in the case of Kitchener -- had to get a higher score on the first stage to pass than the other candidates did.
Mr Curling: Let me tell you emphatically that I don't support principles like that. I support strongly the merit principle, that people must be qualified in order to get the job. Are you familiar with any studies that have been done that show that those who are designated within this bill have been shut out from employment because of whatever categories they carry as designated, in other words, being visible minority, being women, where statistics have shown that they have not had the access to the workplace and have not had access to promotion? Just those designated groups.
Mr Buckborough: The most important part of what you said is that they have been discriminated against in the past. Most of the studies that have been done look at the full occupational groups from the age of 18 up to 65. Obviously, I would not disagree that in the past there has been widespread systemic discrimination, but I think if you were to look at recent hiring trends, you would see that there is no widespread discrimination in the system, as we're led to believe. There are going to be individual cases, and that's what the Ontario Human Rights Commission is there for, but I don't believe there's widespread discrimination, where because a person happens to be a minority person or a female, he or she is not getting hired. I don't believe that's the case.
Mr Curling: So you feel that discrimination has been corrected now over time.
Mr Buckborough: I think it's been corrected with the changing of people's attitudes. I think the younger generation, like myself, definitely has changing attitudes. Our attitudes certainly are not the same as people's attitudes would have been 30 years ago. I think this legislation is a drastic step backwards.
The Chair: One final question.
Mr Curling: Do you believe there is systemic discrimination that exists in the workplace?
Mr Buckborough: You couldn't say there's no systemic discrimination, but I don't think it's widespread. I think in certain occupations or companies there may be, but I think it's also important to look at the fact -- for example, in the area of policing, the Police Services Act, which this government passed, has a part which is similar to the Employment Equity Act, and 50% of all applicants to police forces who are hired now must be female. At least 50% of all police officers must be female.
When you look at that proportion to the percentage who are applying, most police forces don't have 50% of their applicants female. In fact, in the Niagara region the deputy chief was quoted as saying that up to 90% of all applicants are young white males. So you have to look at it on an occupational basis between jobs. Not all females want to go into policing. There are certain jobs that different genders are more geared towards. You have to look at that if you say there's widespread discrimination.
Mr Curling: My final question would be this.
The Chair: Very quickly.
Mr Curling: Do you think there is any legislation that should be put in place in order that some of the discrepancies that still exist about access to the workplace -- that people are still continuing to be discriminated against, even though we have the Human Rights Commission?
Mr Buckborough: There should be no new legislation. The Human Rights Commission is there. It's not effective right now. Sometimes people are waiting three or four years to have a case dealt with and when the case is dealt with there's a small slap on the wrist for the violator. That's wrong. It should be strengthened.
Mrs Witmer: Thank you for your presentation, Mike. I know personally that you speak for many white males, because I've certainly been approached by individuals such as yourself and the perception is that this is reverse discrimination. Certainly, even though individuals like yourself work very hard, you simply are not going to be able to obtain the job opportunities you thought might be available to you. I know that's very difficult.
I guess the government wants to ensure that underrepresentation of the four designated groups in the workplace improves, and so it has introduced Bill 79, which it believes is going to ensure fair and equitable hiring practices. I hear you say that's not the case.
Let's go back to some of the other areas that probably are contributing to the problem, the barriers to access. What could the government be doing? What are some of the pre-market conditions before people apply for a job, or what are some of the other conditions that you believe are preventing the four designated groups from accessing some of these jobs where they're underrepresented? What could they be doing, other than introducing legislation such as Bill 79?
Mr Buckborough: I think the most important thing is the education system. If you want 50% of all tow-truck drivers to be female, then there has to be some type of change of mindset in the education system, and that's certainly happened. It's different now than it was 30 or 40 years ago. I think it's a progressive type of thing. It can't happen overnight. But I believe it's happening on its own. There are more female students now in biology, chemistry and the sciences. Twenty years ago, that wasn't the case.
I don't think the government needs to take so much action. I think people are realizing this. People are trying to obtain more equality for all groups, and I really don't think there's a need there for the government to do that much. It can't happen overnight. People are changing their ideas and their attitudes, and I think it's a progressive thing.
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Mrs Witmer: What's going to happen if the perception continues to be out there, the perception that -- and I guess perception becomes reality -- that indeed young white males are being discriminated against and being prevented from accessing certain occupations? What is going to happen? You've told me about what males feel like. You've said that females feel the same way. What is going to happen, once this bill becomes law, to individuals like yourself?
Mr Buckborough: I've got some friends who are actually considering moving out of the province, because we're interested in police work, and it's not a myth that young white males cannot get hired. There are police forces that won't even take an application from a young white male. They'll tell you up front, "We can't take your application because we have to hire a female and a minority person." It's very discouraging and we're going to consider looking for jobs elsewhere.
I considered not even going back to school. What's the point of paying $10,000 a year for four years to get a BA and then find out you can't use it because you can't get in the career you want to have because they have to fill it with people who may not be as qualified as you are? I say "may not be" because everyone should at least be given the chance. That's not the case right now. I use the Police Services Act as an example because they have quotas or goals in their legislation, which is what this legislation will be like. It's a prototype for this legislation.
We've just started to organize, and --
Mrs Witmer: Are your numbers growing?
Mr Buckborough: Our numbers are growing. We've tried to do things as far as writing to the commissioner is concerned, or writing to the government, going before committees like this, doing everything in the way that we're supposed to do it. But it's going to get to a point where we're going to be so mad and so discouraged that some people are going to start to do things that are a little bit more radical, like this protest, walkouts. There's going to be a large dropout rate with young white males.
I'm not overexaggerating. There are so many of us who have the idea that we're in university for nothing, that we're there for nothing. We get a BA and we can't use it because we get forms like this that don't even list us. We're not even considered on this form, and that's the way it's going to be with this legislation. It has to be. Otherwise, how are they going to know, to keep track, of what a person's gender is, and ethnic background, unless they hand out forms like this or unless you go and they say, "We can't hire you, we can't take your application, because we have quotas to fill for other members"?
The Chair: Moving on to government members, I would remind you that there are five people who would like to ask questions.
Mr Fletcher: And there are only six of us here.
I'd like to thank you for your presentation. Just about the OPP, that strikes me as strange that an officer would say something like that. You were upset when that happened.
Mr Buckborough: I was more than upset.
Mr Fletcher: Is that the first time you've gone for a job application and you've been discriminated against like that?
Mr Buckborough: It's the first time I've experienced, and that was the first police force I approached. I've contacted 12 to 15 police forces and they all tell me the same thing.
Mr Fletcher: I think the officer should be fired.
Mr Buckborough: Well, they're telling it like it is. If they've got quotas to fill, they've got quotas to fill.
Mr Fletcher: To put it in such a way, the way that it was mentioned, pointing to a sign and saying, "Because you don't fit this group, you're not going to be hired," I think is a little heavy-handed in the way of approaching it. I think the approach could have been to explain what the police services are doing and how they're trying to promote employment equity through their system, through their hiring, and how they're trying to show a reflection of what the community is. I think they should have approached it that way, not in the way they did approach it. I really do look at it as perhaps being one of the reasons we need employment equity, so that people are not saying, "You can't be hired because of your colour." You're not the only person who has ever been --
Mr Buckborough: That's what they're saying, and it's your government that's instructing them to do that. Your Police Services Act that your government passed has said that 50% of all officers must be female. How can you have 50% of all officers female when 90% of the applicants are white males? That's not fair. If you're going to do that, why don't you go to nursing and say that 50% of all nurses must be male? It's the same type of mentality.
Mr Perruzza: Point of order, Mr Chairman: Maybe we can have legislative counsel clarify that.
Interjections.
Mr Perruzza: The Police Services Act says you must hire -- I think we should get that cleared up. You just can't --
The Chair: Mr Perruzza, it's not a point of order, but I would remind the members that -- we need to take the point of order? Thank you for your assistance. It wasn't a point of order. Mr Fletcher, continue your questions, please.
Mr Fletcher: I was just going on. I suggest to you that since you have been through this, it's a good thing for you that you probably were not born female or black or disabled or, for instance, anything, because the number of times that you would have been discriminated against would have been many times worse than what has happened to you. Again, I go back to the police officers and the police forces, and I'm saying to them --
Mr Buckborough: So it's right to tell me that because I'm a young white male, they won't hire me --
Mr Fletcher: No, I'm not telling you anything. What I'm saying is there is definite need for employment equity.
Mr Buckborough: -- or it's right to tell me that I might as well not even put my application in, or it's right to --
Mr Fletcher: There is a definite need for employment equity when such things are happening.
The Chair: Mr Buckborough, I'm sorry. Mr Fletcher, please place a question. It would be easier in terms of discussion.
Mr Fletcher: Thank you, Mr Chairman. I'm finished.
Ms Margaret H. Harrington (Niagara Falls): Thank you for coming, Michael. I knew Michael when he was in high school.
I wanted to first of all ask you about the numbers that are members of your organization, and I also wanted to mention to you that you said that this will hurt business; that was, I believe, what you said. I have a quote here from Bob Sutherland from the Royal Bank, who said, "It has undoubtedly benefited our business by gaining access to talented people."
Do you believe that there is no discrimination now? I think you answered the previous member by saying that you didn't believe that, that you realize there is discrimination now.
One other thing you mentioned was merit. I'd like to point out to you that people at this point in time, and I hope you'll agree with me, are not solely hired on the basis of merit. That's the way the system has always been, for decades, and we would like it to be more based on ability and merit. I think you'll agree with that.
I also just wanted to point out that we are not saying that employers are racist. I think you mentioned that. What we are saying is that there is a hidden and unintentional systemic discrimination.
Just to point out to you an example of that, we in this committee yesterday said, "We want to be fair and equitable, and therefore anybody in this whole province, if we put an ad in the paper and say, `Please apply to come and speak to this committee on a first-come, first-served basis, you will be put on the list to come to this committee.'"
Doesn't that sound fair and equitable? But if you look into it, you will see that it's much more difficult for women, say, who have children who want to come before this committee than it is for, say, a business person, a man, much more difficult for aboriginal people who, say, live in the north, or disabled people, to come to Toronto and appear before this committee. On the surface it appears fair, but when you look at the reality of people's lives, it is not fair, and that's what we're trying to get at.
I'd just like you to respond to the question, don't you agree that there has been discrimination and that this initiative is needed?
Mr Buckborough: I would agree that there has been discrimination and I would disagree that this initiative is needed. I don't believe it's widespread. I think that if the government would look at an objective study, with hiring trends over the past 10 years, just people hired over the past 10 years, you would see that this myth of widespread discrimination doesn't exist. We've presented to you eight statistics from studies that have been done, including an unemployment rate for young white males: It's 22%, almost double the national average. There's something wrong with that. That comes from Statscan.
Ms Harrington: I'll pass to my colleague.
The Chair: Mr Buckborough has no more time. Thank you for coming and thank you for making this presentation to us.
The following presenters: Dr Anita Ross, Kevin Jones.
Mr Tilson: Mr Chairman, on a point of order: In the past we indicated that we might have further questions for the Ministry of Housing.
The Chair: The Minister of Housing?
Mr Tilson: The Minister of Citizenship. My question is, when will we have an opportunity to ask? I'm thinking, for example, as presentations come; I have a question for the Ministry of Citizenship as a result of this presentation. When will we have an opportunity to ask the staff officials for information or questions?
The Chair: We have given you that opportunity in the beginning, when the minister came here to give her own presentation and spoke to this issue, and then you had the opportunity to ask those questions.
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Mr Tilson: I understand that.
The Chair: We haven't built in, at this moment, an opportunity for the minister to come again to answer questions.
Mr Tilson: I didn't mean that, Mr Chairman. I think it was a question Mr Curling may have asked yesterday: If further information is requested from ministry officials who are here in the room today, when will we have an opportunity to ask them brief questions as a result of issues that have been raised by delegations before this committee?
The Chair: We can, if the committee wishes, have a staff member answer some of these questions, technical or otherwise. We can schedule that in the morning --
Mr Perruzza: On a point of order, Mr Chairman: Can I just --
The Chair: I'm sorry?
Mr Curling: But he's responding.
Mr Perruzza: Can I make my point?
The Chair: Let me deal with this point here before we deal with another point. I think we can, if the committee wishes, ask questions of the ministry staff and ask them to do that either in the morning or at the end of the day. We could do that if the committee wishes. Mr Perruzza, is that --
Mr Perruzza: My point is that we have an established agenda, right? There's a subcommittee to deal with these issues and that's probably a better forum, or at the end of the day we collectively, as a committee, can decide to proceed with that. We have presenters and I think we should --
The Chair: That's the point, but Mr Tilson is saying, "We would like to ask ministry staff to answer some questions that they might have." We can agree to that if the committee is agreeable to that. We just have to decide at what time we want to do that.
Mr Winninger: Point of order.
The Chair: Another point of order? Is it a point of order?
Mr Winninger: Yes. I thought we had set aside days for clause-by-clause review to deal with exactly the kind of request you're making. We have technical people here. That way they don't have to be here every day of the hearings and take valuable time from the public for whom we've reserved these three weeks. I hope that our subcommittee, when it gets together to discuss this, will be mindful of what we have contemplated in terms of organizing our time for these hearings.
The Chair: Just as a reminder, the subcommittee, earlier on, in the beginning stages of this, had agreed or had stated that ministry staff be available to answer questions when that arose. We can schedule it in, in an appropriate way, so that can happen, as opposed to leaving that for clause-by-clause. So I think we can accommodate that in some way at some point of the proceedings.
Mr Winninger: I respect the Chair's position.
Mr Curling: I have a point of clarification.
The Chair: Do we really need to continue that?
Mr Curling: Yes. I have a point of clarification. I don't want to be hearing from you, Mr Chair, that it's after the hearings of the day that we have the members of the staff respond. I think what Mr Tilson is saying is that from time to time questions come up that we'd like to ask the minister, who refused to come anyhow and said that she made provisions for her staff to be here.
Mr Winninger: She gave time. She was here yesterday.
Mr Curling: You got your point and I would like to ask my point.
The Chair: But this is the point.
Mr Curling: Could you clarify that the question can be asked any time?
The Chair: Mr Curling, that's the point I was trying to facilitate. If the committee wishes, it could, at any point the people have a question, take that question immediately and pose it to the ministry staff, or, in a much more orderly way, perhaps leave it for the end of the morning or the beginning of the afternoon or at the end of the day, so there's an opportunity to do that, just to make it easier. Otherwise, it would cause unnecessary complications to the committee, I think.
Mr Tilson: Mr Chairman, I didn't mean to get everybody all upset. If I have a question, I will use it in the appropriate time to the questioner and hopefully you'll allow me to ask the question of the ministry official.
The Chair: We will attempt to accommodate that.
IBM CANADA LTD
The Chair: Next is IBM. Welcome.
Dr Anita K. Ross: Thank you. Good afternoon, ladies and gentlemen.
The Chair: You have half an hour. You know how it works.
Dr Anita K. Ross: My name is Anita Ross. I'm vice-president, human resources, for IBM Canada. With me today on my right is Kevin Jones, manager of employment equity at IBM Canada. On my left is Laurie Harley, who is manager of public affairs for IBM Canada.
We at IBM Canada welcome the opportunity to participate in the public hearings on Bill 79. While we are a national employer, Ontario is home to just over two thirds of our 10,000 employees so we have a very keen interest in the province's proposed employment equity legislation and the accompanying draft regulations.
Our submission, which you received in advance, covered three areas: First, we explained the perspective IBM brings to the debate on employment equity; second, we offered our general reaction to the legislation; and third, we described three specific areas of concern, along with our recommendations for improvement.
I'll limit my presentation this afternoon to the highlights of our submission so we can leave as much time as possible for your questions.
Let me begin by explaining, briefly, the perspective we bring to the committee.
We're an employer with practical experience in both voluntary programs and programs legislated under the federal contractors' program and the Quebec contract compliance program. We're also an employer that is undergoing revolutionary change.
Our business used to be like a game of chess: You took a great deal of time making decisions, you understood the rules, you planned your strategies, you made your moves one at a time, and each move was critical in determining victory or defeat.
Today business is more like a video game. You are forced to make many decisions simultaneously, the rules are constantly shifting, there are no historical patterns to follow, your strategy is to make as many moves as you can as quickly as you can, and you don't worry about the occasional miss, because victory goes to whoever has the most points and is still around when the game ends.
To succeed in this environment we need speed, innovation and flexibility. That's why our submission focuses on the draft regulations. If they are rigid and restrictive, they simply present roadblocks to change. We're looking for regulations that are flexible and adaptable to our changing workplace and consistent, of course, with the principles and goals of employment equity.
Let me move on to comment on Bill 79.
IBM Canada's overall reaction to the legislation is positive. We congratulate the minister and her staff for the extensive consultation process that surrounded both the bill and the draft regulations. We believe the proposed regulations represent a sincere attempt to balance the interests of all stakeholders and at the same time promote the principles of employment equity.
From our perspective, the most positive feature of the legislation is the degree of flexibility the regulations provide at the workplace level. In IBM's case, they do not restrict our application of the merit principle in hiring or promotion; they allow us to set our own goals and timetables based on external and internal criteria; they allow us to design our own participation models; and finally, they acknowledge past work by permitting the use of previous workforce surveys and employment systems reviews when they meet specified criteria.
Unfortunately, not all the regulations provide the necessary degree of flexibility.
When we took a practical look at the regulations we identified three areas of concern and developed four recommendations for improvement. The three areas are the workforce survey itself, the use of geographical areas, and the use of occupational groupings.
In the interest of time this afternoon, I'd like to focus my remarks on the most practical problem we face: the use of geographical areas. I should add, however, that the issue of occupational groupings is of equal importance strategically if we are to forge a harmonized regulatory environment that reduces bureaucracy and adds value to our workplaces.
Let me look then at the use of geographical areas.
Bill 79 calls for employers' workforces to reflect the representation of designated groups in the community. The regulations, in turn, translate "community" to mean geographical areas, based on Statistics Canada census metropolitan area or census agglomeration groupings. The regulations for compiling workforce data, setting goals and reporting information are then based on these geographic criteria.
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We understand why the government selected geographical criteria, and we recognize it may be a meaningful breakdown for many Ontario employers. We also understand the principles of corporate citizenship and our responsibility to support the communities in which we live and work.
However, the proposed regulations assume that multilocation employers, such as IBM, will find it useful to categorize their workforces according to the 42 geographic areas provided by Statistics Canada. The regulations provide some flexibility for an employer to use census data at the Ontario level but only for numerical goal setting. We'd like to see that same flexibility extended to include other requirements.
Here are some of the practical problems the geographical breakdowns create for us. Our business is not organized by geography. Instead, we divide our company today into four major business divisions: manufacturing, software development, marketing and services. Each division is further segmented into multiple functions. The divisions and their functions cross geographic lines throughout the province and indeed across Canada.
For example, a census geography such as Hamilton includes approximately 70 employees, who report into 10 different business functions. There is no business rationale for us to segregate employment equity data for the Hamilton location or the other 10 geographical areas where we do business in Ontario, but that's exactly what we'd be forced to do in order to comply with the proposed regulations. Obviously, we'd like to avoid this type of bureaucratic workload.
As a national employer, we manage our human resources Canada-wide. We hire and transfer our people freely across all provincial geographies, based on the needs of the business and the skills and interests of our own employees. Relocation is a reality of our business and an important factor in an individual's career development. Regulations that require us to monitor employment equity at the location level could create a barrier to career development for the designated groups.
For example, relocating an aboriginal engineer from Thunder Bay might be in the best interests of his or her career but not in the best interests of achieving the geographic representation goals. Ironically, in a case like this, regulations intended to promote equity could end up having the opposite effect.
Our employees would object strongly to any employment equity requirements that restricted their individual flexibility to relocate. In fact, it was one of our own employees from one of the designated groups who made this point very clearly to us during a focus meeting we held to discuss the implementation of Bill 79 at IBM.
Our problems are further complicated by the number of small locations we have in Ontario. Of our 7,000 employees, the vast majority, some 6,000 or so, work in the census metropolitan area known as Toronto; the remainder are spread across 10 areas, nine of which have fewer than 100 employees, including six with fewer than 50 employees.
The regulations provide flexibility for small private sector companies. Employers with fewer than 50 people are exempted from administrative obligations; employers with fewer than 100 people face less stringent requirements. All the reporting requirements apply, however, to our small locations because they are part of a larger workforce. It is not our intention to exclude any IBM location from participating in the employment equity process, but we'd like the flexibility to have them participate in a way that's meaningful for them.
We'd also like them to participate in a way that does not expose confidential employee information. Using geographic criteria significantly increases this risk at small locations. When we collect survey data, we assure our employees that the information they provide will be treated confidentially. Protecting employee privacy in locations with fewer than 100 people becomes difficult when you are required to break down the population by 14 occupation codes, by the four designated groups, by male, female and by salary grouping. The provision to designate a less-than-five category does not offer adequate safeguards to employee privacy.
To summarize, the proposed use of geographical areas would force us to develop artificial ways to plan and report on employment equity, would introduce potential barriers to the mobility of our designated-group employees and, lastly, could expose confidential information about individuals who work in small locations.
Our recommendation, therefore, is that employers with multiple locations who normally manage their business at the provincial or national level be given the flexibility to analyse their workforce, set goals and report information using Ontario as their geography. This would avoid the problems we have outlined by letting employers determine how to further classify their workforce based on the way they normally run their business. The approach they select would obviously have to be meaningful to employees as well as supportable to the commissioner.
We see this alternative as totally consistent with the principles of employment equity and with the goal of flexible yet effective regulations.
To conclude my remarks, I'd like to briefly summarize IBM Canada's submission on Bill 79.
Our overall reaction to Bill 79, as I said earlier, is positive. The legislation is balanced and goes a long way to removing many of the concerns raised by the business community during the consultation process.
It is important that the regulations allow employers sufficient flexibility to keep pace with change in the workplace and at the same time pursue the goals of employment equity. We offer four recommendations that we believe will improve the regulatory process without compromising the principles of Bill 79.
The first one is to encourage positive participation in the workforce survey by rewording question 4, section 6, to read: "Please indicate whether you are male or female."
The second recommendation is to introduce a more flexible regulation that would make a resurvey every nine years optional, based on meeting select criteria.
The third one, that I have spent some time describing, is to allow employers with multiple locations who normally manage their business at the provincial or national level the flexibility to analyse their workforce, set goals and report information using Ontario as their geography.
The last recommendation is to develop a new standard for assessing the workplace that moves away from traditional occupation codes to classification based on compensation groupings.
That concludes my full remarks. I'd welcome any questions you have and I would invite my colleagues to participate if it's appropriate at any point.
The Chair: Thank you, Dr Ross. We'll begin with Ms Witmer, five minutes.
Mrs Witmer: Thank you very much for your presentation. I really want to congratulate you on the work you've already done.
You've indicated here that you're dealing with the regulations, but one of the questions I would have for you, Dr Ross, is, are you suggesting in any way that the government should be placing these regulations and these amended changes within the bill?
Dr Ross: Not necessarily, although I know there are various groups who want to see certain things strengthened right within the legislation. I'm certainly not an expert in writing of legislation, but to me legislation comes alive when you look at regulations so I look on regulations as being every bit as important as the legislation itself, but the degree to which you can clarify things right within the legislation is important.
Mrs Witmer: I'd like to focus on the workforce survey. You've done an excellent job on the geographical area explanation. You indicate here that the reason you'd like to see the need to resurvey done away with is because it's very expensive and very time-consuming. I know my colleague Mr Tilson has been concerned, and that's one thing we're not able to get a handle on; that is, the cost. Obviously, you've had a lot of experience and you've devoted a lot of staff time. Can you elaborate on the expense and the time consumption involved?
Dr Ross: We have indeed, because we are a contractor to the federal government. Yes, we have many systems already developed to look at employment equity etc, but today if we look forward to doing a separate survey to meet Ontario's regulation it would cost us somewhere between $75,000 and $100,000, we figure, and that doesn't include salaries; it certainly doesn't include the time or the salaries of people who would participate in whatever participatory model we might choose to use.
So it's not insignificant, and of course for employers such as ourselves, who are required to respond to employment equity legislative requirements at several levels, federal, provincial and even municipal, this does become a very significant burden, and therefore the degree to which we can have some harmonization of the legislation is essential, I'd say.
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Mrs Witmer: I appreciate that, because I know one of the concerns for the employer community has been the cost of compliance, and certainly the survey is a big part of the cost. I know my colleague has a question.
Mr Tilson: I have one question. I asked that question this morning, the issue of cost, to the Business Consortium on Employment Equity; some of them are in the room this afternoon, in fact. Of course, they pointed out that the larger firms already have certain equity departments or sections in their firms now and that the real tough part would be with respect to the small firms. I understand that, because I think that's going to be the problem; it's going to be the 50-to-100-employee firms that are going to have the real problem.
But the concern that's been raised periodically has to do with the fear of a mechanism that is going to now be developed with the Employment Equity Commission that will prompt vexatious complaints particularly by certain groups, advocacy groups -- I don't mean that in a derogatory sense -- but certain groups that are targeting large firms, high-profile firms, that will take away the resources that both the company and indeed the government need to devote to perhaps more positive things. In other words, the suggestion in some of these complaints is that larger firms, believe it or not, may become vulnerable because of this possibility. Have you or any of your people who work with you directed any of your thoughts towards that fear, or is it a real fear?
Dr Ross: We haven't directed a lot of our thoughts towards it. That would be a most unfortunate situation, if we spent all our time fighting against things rather than putting our efforts and dollars and energies towards positive programs that certainly are -- there is obviously still a lot of ongoing education needed for everyone. If for some reason those sorts of things started to happen, I would hope that the government, any government of the day, would step in to ensure that vexatious complaints just wouldn't receive its support.
Mr Tilson: So your position is just to hope that it won't happen.
Dr Ross: Yes, at this point it is.
Ms Carter: I'd like to congratulate you on a very constructive presentation and on having already for some time been implementing employment equity in your firm. I note that you said that this does not restrict the application of the merit principle. I'd like you to enlarge on that a little, if you could, because we're being told that because of this legislation we shall not be able to hire people because they are qualified for the job.
I wondered if you'd also tell us about your employment equity initiatives, what benefits the company has derived from these and how you measure your progress.
Dr Ross: In terms of your first question on merit, this is absolutely critical to our business. It is essential. It is something that is at the core of our business and has been through our 75-year history, and we would be fighting very strongly if we sensed that the legislation prevented us from continuing with that philosophy. We have always hired, paid and promoted based on merit.
Ms Carter: So you don't see Bill 79 as any threat to that?
Dr Ross: Not for us, and I speak for IBM Canada here. But I understand that that is something we must all work very hard to ensure that everybody else understands. It is absolutely critical that the best-qualified candidates continue to be hired and promoted etc.
In terms of employment equity overall, again we are fortunate that the notion of equal opportunity, equity, non-discrimination, all of those notions, are embedded in our business, in our culture, if you will; they have been with us for decades and therefore we are not starting with new notions here. Everything we do, though, I must say, all the programs to assist our people to have more flexibility in the workplace, get ahead in the business, are programs that I would call inclusive. They include everyone, and that does mean white males. We find that we can very easily make progress in the workplace, introduce things that are good for everyone. We don't have to exclude people and we have no intention of doing that in the future.
Ms Carter: So that's part of your philosophy of being up to date and playing the game.
Dr Ross: Of being a good employer, yes, absolutely.
Ms Laurie Harley: Could I just add a comment on the merit principle? I did sit in this morning and I heard a number of the presenters. If there were a way of strengthening that concept within the bill itself, we would obviously welcome that as well, but we've worked very closely with the minister's officials and the staff in the consultative process, and when we look at section 24 of the regulations and see five points listed there that talk about the same kinds of things that to us are merit, that says to us that we can do what we have traditionally done and not be at odds with the regulations or the bill. That's the basis on which we say we don't think this is at odds with the way we would operate our business normally.
The Chair: Mr Winninger, one final question.
Mr Winninger: I too would like to commend you on your presentation and compliment you on your initiatives. I'd like to focus on your third recommendation, which would allow employers to use province-wide criteria in the analysis of the workforce and goal-setting and reporting of information. Quite clearly, companies such as your own need to have some flexibility, and I'm sure the minister will be quite interested in your presentation.
On the other hand, I have two difficulties with your approach to this, the province-wide approach. One is that in a municipality such as Toronto, you may be diluting the representation in the composition of the workforce by imposing a province-wide criteria in some of these areas -- perhaps not females, but perhaps in the other three designated groups. That was one concern I had.
Another concern: This comes back to your example of a company's requirement to perhaps bring in a native engineer from another part of the province and some of the administrative difficulties around that. Let's say Metropolitan Toronto has anywhere between 50,000 and 100,000 people of aboriginal ancestry. Clearly, if you were to analyse your workforce on the basis of the geographical area of Toronto, the census metropolitan area or whatever, you might find that you wouldn't be required to bring in a native engineer for a particular job, whereas in the north, where native people constitute a much higher proportion of society, clearly there the need would be greater.
So it would seem to me that by adopting province-wide criteria that aren't responsive to the particular composition of the population in a specific area, you'd be inviting more of these imports. While you may be obliged to conduct your review and analysis based on the local population, it's still open to you to bring in people from other parts of the province, but at least you'd have a workforce that more accurately reflects the composition of the population in a particular area. I throw these concerns out for your response.
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Ms Harley: What you described would make ultimate sense if the skills we were looking for when it comes to hiring are readily available in all the geographies of the province or indeed of Canada, and that's --
Mr Winninger: Sorry to interrupt, but my point was that you don't have to find those people in a specific geographical area. That was my point.
Ms Harley: There's a distinction between hiring them and maintaining them, and I think that was the illustration we wanted to make. For example, you might be able to hire an aboriginal engineer more readily in Thunder Bay since there may be a larger aboriginal population in that city, but if that engineer is to progress and be offered the same career opportunities as any other employee, that engineer would want to perhaps move out of that location to Toronto. If we're forced to assess our progress in Thunder Bay, we may not want to let that person leave Thunder Bay because that individual represents our geographic representation. If that person moved, we might lower our numbers and therefore --
Interjection.
Ms Harley: Exactly. There's a danger that you could be forced into doing unnatural things.
Mr Winninger: But no one, I think, under an employment equity plan would fault you for advancing the career of a designated group member. That was the only point I wanted to add.
The Chair: We're running out of time. Official opposition member.
Mrs Caplan: The arguments that have just been put forward I think have been the best arguments for the changes that you've recommended as far as the issue of geography in this legislation, both from the interests of the employer and the interests of individual employees who want advancement.
The government's been making the case and trying to say that this legislation will not impose quotas, but after listening to the discussion with Mr Winninger, I'm convinced that if this legislation goes forward as it is, that will be the result. I too, as I ask my questions -- and I just have a couple of small ones.
IBM, we know, has gone through a number of changes in the last few years and the human resource leadership that you've shown not only in the area of employment equity but in good employment practices is something that we've all been very aware of, and I too wish to compliment you and to acknowledge that leadership. But we know that many employers are not as progressive as IBM and that you've had expertise within your human resource area that many employers may not have.
I guess the question that I have for you is, for an employer at the 50-employee range of size, from your perspective, how much expertise will they have to have internally? What kind of costs do you think they would incur in attempting to do what is required under this legislation?
Dr Ross: That's a really difficult question for me to try and give a sensible answer to. I'm sure someone working with small businesses could give you that. There's any number of associations that work with them because they've obviously looked at it. That's a very awkward size of business. You're big enough to be big, but you're small enough to be small, and that has problems of all sorts of nature. I don't know, Kevin or Laurie, if you want to comment at all.
Mrs Caplan: I'm not asking for a definitive cost. When I say "cost," perhaps in numbers of employees or in purchasing the expertise from the outside. What we want to consider is what kind of expertise a company of that size would have to acquire to be able to implement legislation of this complexity.
Dr Ross: I think you'd have to take someone, probably initially full-time, and then later on part-time, who would be the interfacing -- if you had an outside consultant helping you, setting up your own systems etc. There is an initial investment that is not small and it isn't small even for a large employer. So again, I would say it isn't something that is going to be easy. It's costly both in terms of time and energy and just straight dollars.
Mrs Caplan: Could you predict for us what you think will happen if your four recommended changes are not incorporated in this legislation, for IBM? These are very significant changes that you're recommending. What do you think will happen, not only for IBM, but thinking about the complexity for some of those other smaller employers impacted by this legislation if the changes are not made or if this legislation is imposed?
Dr Ross: Certainly the geographic one for us is very significant. It really would force us to describe our business and report on it in a way that is totally foreign to us.
I would make the same point, frankly, about the occupational codes. We didn't have time to talk about that today. That is very significant for the future. The occupational codes used today and the new ones coming out, the national ones, do not, to us, describe our workplace as we see it even today, and certainly into the future. Those groupings are not those that we would use for knowledge workers, and therefore we are certainly going to be working with the federal government also to encourage it to think about a major rethink on that also. It's very important.
Mrs Caplan: The last question I have on the rewording of the questionnaire, on number one: What would you recommend?
Dr Ross: We very much want all people to be able to participate in some positive way, and that was the thrust behind it, because it is a really dreadful thing to ask a man to say no to being a woman. We're always looking for a win-win way to do things. So if you use the simple suggestion we've given you, it allows people simply to say, "Yes, I am a man," or, "I am a woman," and go on from there.
Mrs Caplan: I was struck by two points that you made.
The Chair: You'll have to be quick.
Mrs Caplan: One was that your human resource policies and your employment equity policies you believe should be good for everyone. I hope the government will listen. We have some real concerns as to whether or not this policy and the legislation that's before us -- we don't believe it can be implemented in a way which will achieve the goals, particularly for smaller businesses in the 50 range. We think there will be great difficulty.
The Chair: You'll have to wind up.
Mrs Caplan: The last question I would ask is on the best-qualified-candidates approach within this legislation and within the experience that you've had. Is the education component the important one within your human resource experience?
Dr Ross: We look at a number of factors. Certainly, the educational background is an absolutely critical one. It is totally unproductive to bring someone into the business who doesn't have a hope of truly participating in a meaningful way.
The Chair: Thank you, Dr Ross and other members of IBM, for your participation.
DISABLED PEOPLE FOR EMPLOYMENT EQUITY
The Chair: Disabled People for Employment Equity, Eric Schryer. Eric, you have half an hour. Please begin any time.
Mr Eric Schryer: I'm Eric Schryer from Disabled People for Employment Equity. For short, we use DPEE. DPEE is a coalition with a membership comprised of consumer groups, agencies and individual consumers. Our mandate is to lobby for mandatory employment equity legislation; develop awareness for persons with disabilities so that they can see the potential and advantages of participating in the workforce and its economic rewards; educate employers, labour organizations and the general public on employment equity issues; and monitor compliance with and progress of employment equity initiatives and laws. We also do research into employment equity issues and publish resource materials. The results of our activities will have an impact on all persons with disabilities in Ontario, making up about 13% of the working age population.
I have a written brief and I did a summary of our concerns. What I'll do is read through the concerns to get them on the record and I will concentrate on a number of them. The ones I will concentrate on will be on the issue of the interplay between human rights and employment equity, especially in the area of accommodation; the question of severe disability; the area of mandatory goals and timetables; and the availability of data to the general public.
First I'll read our summary of concerns.
(1) We take the position that much of what is left to regulations must be moved into the bill. We also call on the committee, within the context of considering Bill 79, to consider producing a report on the draft regulations.
(2) There must be an obligation on employers to put into effect a number of initiatives that will result in the workplaces of employers looking more like the communities in which they are located.
(3) Individual complaints should not be directed to the Employment Equity Commission. It should be a responsibility of the Human Rights Commission to investigate if an employment equity plan can be considered as part of a remedy or settlement. The individual should not have to end up in another lineup.
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(4) When employers are asked to review their employment policies and practices -- employment systems review, or ESR -- this should be done with a mandatory checklist in hand that steps through the review in a comprehensive way. This should be in the bill.
(5) Positive measures which can be defined as employment equity initiatives that give temporary preferential treatment to designated group members to make up for the accumulated effect of past discrimination must be clearly defined in the bill. I'll return to that a little later on.
(6) The solution to the problem of distinguishing individual and systemic accommodation issues is, first, not to amend the Human Rights Code in subsection 51(3), and second, to have the employment equity plan deal with developing the infrastructure, policies, procedures and knowhow to deliver accommodations. This should be stated very clearly in section 11.
(7) In order to get any results through employment equity, it is essential to have mandatory numerical goals and timetables as a central feature of Bill 79. Numerical goals and timetables must be set by the Employment Equity Commission.
(8) In order for Bill 79 to cover all persons with disabilities as a designated group, it is absolutely essential that subsection 5(1) be amended to put an obligation on employers to hire persons with severe disabilities and persons with disabilities with severe disadvantages if the supports and employment services that are required by both the employer and the individual needing these supports are available in the community. The need for special provisions for persons with severe disabilities should also be acknowledged in the preamble or principles section of Bill 79.
(9) There must be provisions in Bill 79 to make more workplace data available to the general public.
(10) The time lines for implementation of the legislation must be shortened, especially for smaller employers.
(11) Designated group members should make up the majority of the commission, the tribunal and their staffs, as in subsections 40(2), 40(4), 46(2) and 46(5). Representation should be equal for the four designated groups. The same should be said for the advisory councils to advise the commission set up by the Minister of Citizenship -- subsections 45(1), 45(2) and 45(3).
(12) Our position is that the legislation should cover smaller employers and that there should not be any modified requirements.
(13) We think the review of the act and the regulations should be done not just once, after five years, but repeated every three years after that. That would be similar to the federal Employment Equity Act.
(14) Of the advisory councils referred to in section 45, one should specifically be established to do a continuous review of the act and regulations and make a presentation to the standing or select committee, to the Employment Equity Commissioner and the minister responsible for the legislation.
What I'd like to turn to now are some of the more specific issues that are very, very much of a concern to our community. One has to do with the area of accommodation. Actually, I'll start off with positive measures. I think that's a very interesting one that I've noticed in a lot of the development of the bill and also in a lot of our advocacy work: Many people do not understand what positive measures are.
I also notice that in the regulations -- unfortunately, we have to bring the regulations into it in this context of looking at Bill 79 -- there is no mention of positive measures there. We believe that since there's an accumulated amount of, I'll just say, disadvantage because of past discrimination, it's very important that positive measures be a central part of the bill.
I'd also like to emphasize, for those who are bringing up the whole question about reverse discrimination and those other myths, that positive measures are temporary initiatives designed specifically to make up for past discrimination and only operate in a context of not having equality. I think this should be actually defined in the bill.
Also, it's interesting to note that where it all comes from actually, if you're familiar with equality rights, is subsections 15(1) and (2) of the Charter of Rights and Freedoms. That gives the justification for doing so and also states that it is a desirable thing to do so, and I hope everybody's familiar with that. I really believe that employment equity is predicated on the Charter of Rights and Freedoms and on the Human Rights Code. In fact, employment equity is the application of human rights for a very specific purpose, meaning systemic discrimination, which leads me to my next topic, which is the area of accommodation.
In accommodation there is a real confusion in Bill 79 and in the regulations between the need for an individual person to be accommodated in the workplace, which right now according to the Human Rights Code has to be done, their duty to accommodate has to be done, unless the employer can prove undue hardship if they're doing so, and then the other issue of course is the systemic accommodation.
As you know, in the bill the Human Rights Code is being amended, which I think is a very tricky thing, a very dangerous thing to do. What will happen is that a lot of individual cases will still end up being shuttled over to the Employment Equity Commission, which is not really going to be equipped to deal with individual cases. I believe this comes from the whole idea that employers just want human rights to go away and let's get it all into one package here, which basically is just recreating the Human Rights Commission and its problems.
I think there's got to be a very clear distinction on accommodation, that all accommodation should be done according to the Human Rights Code, and there is reference to that in the regulations, but in the bill I believe that the amendment of the Human Rights Code should be removed and that the Human Rights Code should -- in other words, what should happen is that if employment equity is done well, the human rights complaints, the individual complaints can be expected to diminish. If it's not done well, they'll keep coming.
Whereas on the employers' side it's complying to employment equity, they then should concentrate on putting together the infrastructure for delivering accommodations: the procedures, the funds, the knowhow, where to get it and so on, and that should be the business of employment equity. It's a systemic problem, and from that point of view, I think that's employment equity well done. I really want to make that clear distinction. There's been a lot of confusion about that.
The other major point of concern is the one about the availability of data, and we think that in any kind of monitoring it's very important that the community have available to it the basic workforce data. The way the bill's structured now, and also the regulations, there's very little availability of this. Third-party complaints are going to be very important in both giving employers the idea they'd better do their job and also for us to make sure that things are done, because you have to remember that more than half of our community is not in the workforce. Of the ones who are, many of them are underemployed, in and out of the workforce. So there's a particular need to have strong enforcement.
Also, I'll bring in here the mandatory goals and timetables. If you look at any initiative in the past, all the voluntary initiatives, it just has not worked for our community. Just look at the Ontario public service and its annual report last year. The disabled community lost out by 12% in its representation between 1989 and 1992, and that's during an accelerated employment equity program or policy of a voluntary nature, and this is before the cutbacks even started.
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You can see that community is very strong on the need for mandatory goals and timetables, and these have to be set by the commission, because the way a tribunal operates, a tribunal in order to judge has to have something to judge on, and if you allow businesses to set their own goals and timetables, no judgement is possible. It's got to be done from the point of view of some kind of general timetable of change.
I think that covers most of my main concerns. Oh, yes, the last one was the one about severe disability. I think I'll cover that. According to section 5 -- and I have a real problem with that; that's the one that imports all the exceptions from the Human Rights Code -- according to the act, if a person is not qualified or up to productive capacity etc, etc, it's okay not to hire a person with a disability.
We believe that basically our whole community should be covered. We think that should be amended to allow for special programs for persons with severe disabilities, where the kinds of supports that employers require in order to make up for the lack of productive capacity and the kinds of supports that the person with a disability needs, especially in the area where undue hardship can be proven, to give the opportunity to those people with severe disabilities who do want to work, and I've run into many who do -- have an opportunity to do so. Other than that, most of them are just relegated to a life of poverty at this point.
I think that pretty well covers it.
The Chair: Only nine minutes left.
Mr Schryer: Maybe I should open up the questions now, because I think I've covered most of the major points.
The Chair: Very well. Mr Wiseman.
Mr Wiseman: I'd like to thank you for your presentation. I think you have, in contrast with some of the other presentations, with your presentation clearly outlined the problem we as a committee are about to face. We heard from Employment Excellence and we heard from BCEE this morning, and they don't want this bill. They want this bill completely eliminated, as does the opposition, which voted against it on second reading.
Now you've come and you've said that you want us to go beyond what is in this legislation. You want us to go beyond it, you want numerical goals, you want application and support staff, and you want all of these things to be included in this legislation of the employment equity bill. How do we reconcile these two positions that seem to be so far apart?
Mr Schryer: First of all, I think some of the stuff I've heard being said, and I wasn't here for all of it -- for example, the fact that there isn't any discrimination, which I think is totally false. I've heard a lot of talk about merit but nothing about privilege. There are a lot of things being said and I truly believe that all the research, all the data, all the statistics point out that workplace discrimination is alive and well.
We now also know very clearly that systemic discrimination is much more pervasive, much more difficult to deal with. I really believe that a strong piece of legislation is going to be required to reverse this trend, because there's nothing as indicated in the reality of the day-to-day business world where there are any major changes, even where the market forces are in place. There are still many, many businesses, in fact the majority, that do not respond to the argument that the market will take care of things.
I think this bill is very well designed. It's a very flexible, ongoing way of removing these underlying causes for perpetuating discrimination, and it also will make the work of the Human Rights Commission much easier as time goes on.
The Chair: Mr Winninger, did you have a question?
Mr Winninger: Just a quick one if I may: You know that this act quite clearly calls for employers accommodating their special needs of disabled people in the designated group. I just wondered if you could comment on the exception that's provided for undue hardship and maybe share any experience you might have in that particular area. Are there special needs that can be accommodated only with undue hardship? Where do you think the undue hardship begins and ends?
Mr Schryer: As you know, the Human Rights Code says you have the duty to accommodate unless you can prove undue hardship, and undue hardship basically means that you'll go bankrupt if you do it. Bill 79 talks about all reasonable efforts, and that's applied to the employment equity plan. Unfortunately, the employment equity plan also includes reference to accommodation and we think there's an inconsistency there in the way the law is applied, especially human rights, considering that employment equity is an application of human rights.
Also, accommodation involves both things that can be done that will help future people with disabilities in coming to the workplace to be accommodated easier, but also it involves individual people. If I come in the door right now and say, "I'm blind and I want a talking computer," I don't think any employer should make all reasonable efforts to put it on my desk three years later; that should be done now. But if the employer has done his job and he knows where to get the things, knows what it's about, knows about the problems, knows where to get the expertise, he'll say: "Yeah, we'll take care of it. Don't worry."
That's the kind of thing employment equity is made out of, that the employer is prepared to deal with the problems that come up. I really think that's where it has to be all clarified, in that area. Yes, it does mention accommodation, but accommodation is both an individual and a systemic problem, and it's confused at this point.
Mr Curling: I want to tell you that is an excellent presentation. The brief that you put before us is very concise. I also want to say that when the Business Consortium on Employment Equity group came before us, it brought forward a rather excellent presentation too. The talks that we have here as a committee are to look at all these and we don't shy away from the responsibility to assess both and find that we have good employment equity. I did not hear from them, as my other colleagues would say, that they don't want the bill.
I think we all want to have a good employment equity bill. That's what I want to address with you too. Would I be correct in saying that the employment equity bill before us has good intentions but is pretty weak? Would you agree with me?
Mr Schryer: Yes, I would agree with that.
Mr Curling: Would you agree with me if I say too that the regulations that are put forward seem to attempt to more or less put meat and more direction to this bill, that if some of those things in the regulations were in the bill that would have made a better bill?
Mr Schryer: Not necessarily. I think what happened, if you look at the regulations, is that it's an example of what you're allowed to do if the bill's too empty, too much of a framework, because I think there are some real problems with the regulations, and I think it's beyond the scope --
Mr Curling: I'm not saying to put everything in. I'm saying there are certain things.
Mr Schryer: Definitely. A good example is the one about the employment systems review. There could be a very well worked out, mandatory checklist which is partially put in the regulations. I think it's slightly incomplete, but it's good. If that was moved to the bill and an employer says, "Look, if you follow these steps and if you go through these -- some of these things you may have done; some maybe not -- you're guaranteed that at the end of that exercise things will go easier for you and for getting persons who are underrepresented into the workforce."
Mr Curling: Your organization has been working very ardently in order to get certain bills and legislation in so that you could have access to work. Do you think there is some way this government could be convinced then that the regulations could be debated and maybe amended, a major amendment in putting that in the legislation itself?
Mr Schryer: You're asking whether -- you think some of the --
Mr Curling: Because we can't debate it. One of the things is that we can't debate the regulations.
Mr Schryer: No, you can't debate the regulations, but one thing is that I believe it is within the power of this committee, legally, to make a decision, for example, to do a report on the regulations. I may be corrected on this, but that's my understanding. That's where I think it's difficult.
I also understand that if the bill is amended, it's like a cat chasing its tail. The regulations are going to have to be rewritten on the fly, so to speak. I understand that's going to be a problem, but I see the regulations as indicators of additional things that could go in the bill, and I don't agree with the way these indicators go, but the bill's got to be a bit more precise. The rules have to be much clearer for employers to work from, because whether employers agree or disagree with this bill, I'll make a bet that whatever happens at the end, we're going to have the rules very clearly set out so you know what to do. They can plan for it. It can be part of their business plans. If you have something that's very, very vague and too many regulations that can be changed too often, I think employers would probably find it very frustrating, and for us there would be no results.
The Chair: Thank you.
Mr Curling: This is so important, just one quick one.
The Chair: I know, but we need to move on.
Mrs Witmer: I hear you saying in your presentation that this legislation is not progressing as quickly as it should and that you'd like to see the time lines condensed, made shorter.
Mr Schryer: Yes. To explain that, we have been very aware of the problems of equality in employment since 1984-85 with the Abella report. I think the knowledge is very widespread. I believe we've had, what, close to 10 years to grapple with some of these problems, and various pieces of legislation have been in place to try to do that. There's the Police Services Act, there's the Employment Equity Act, there are various other large employers -- the city of Toronto, Metro Toronto -- that have done a lot of work. I believe, now that the problem is so well articulated and understood, that the time line, especially, for example, of three years for smaller businesses and then another three years to complete the plan and another year for -- when you include also the nine years for the workforce survey, complicated by the whole concept of self-identification, a lot of us are going to be retired before there's going to be any results, maybe even pushing up daisies.
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We've been waiting a long time, and you look at our community. There's still been very, very little change in our community as far as getting into the workplace is concerned. All I get is call after call after call from persons with disabilities, it doesn't matter if they're severe, mild, moderate, whatever way you want to cut it, and they say: "I want a job. It doesn't matter if the economy is up or down, I still can't get a job." I think the economy really shouldn't come into it, because it will come up again.
Mrs Witmer: What are the barriers that your group is facing right now? What are the main things holding you back from gaining employment?
Mr Schryer: I would say they come in a number of categories. The first one is discriminatory attitudes; that's a very strong one. When I say that, to put it in a frame, I mean there's a lot of attitudes we have about the capabilities of people with disabilities that are very skewed; that's a very difficult area, because culturally things we're used to thinking of as very positive have a negative impact on our community, such as the concept of charity and some of these other things.
The other one is some of the areas in training, education and how to get to work; for a number of our members it's difficult to get to work. There's also the area of accommodation. We're still waiting for the present government to put the guidelines to accommodation into regulations for the Human Rights Code. It still hasn't happened, and as a result the Human Rights Commission just hasn't been operating too well in this area.
I could go on and on. There's a lot of barriers, a lot of fears, people have fears. It depends also on -- there's many different types of disabilities. The psychiatrically disabled community has its concerns. The developmentally disabled community has its concerns. There's a whole range of concerns around that.
But I would say the attitudinal barriers, access and accommodation are the three main areas, among many, and also in some of the areas I mentioned before, in the limitations of productive capacity. Somebody may be very qualified and competent at doing something but can't do as much as or can't do it in the same time as somebody else. Why should they be excluded from the workforce?
There's a whole range, and I think our community has some of the most complex problems in barrier identification and removal.
The Chair: One final question. Mr Tilson, do you want to ask a question?
Mr Tilson: I'd like you to elaborate somewhat on the issue of positive measures. I heard you make your presentation, and I'm reading it, where you talk of the act defining "temporary preferential treatment." What is temporary preferential treatment, how do you arrive at it and how long does it last?
Mr Schryer: I emphasized temporary because it's only supposed to last in order to make up for a reasonable portion of the accumulated disadvantage. In other words, if you started right now and only treated everybody equally -- and this is an argument you hear a lot, both in the media and a lot of employers have come up with this -- yes, there will be some change, but how do you make up for the accumulated effect of being treated at a disadvantage or giving other people privilege in employment?
I won't read it because it takes a bit of time, but if you go to the equality rights clause in the Charter of Rights and Freedoms, it explains it very well; I think that's a very nice piece of legislation. It says it is desirable to have programs that ameliorate disadvantage of persons who are discriminated against.
I'm a firm believer that yes, we start from square one and make it a level playing field, but we also have to, especially for those who have been very thoroughly excluded from the workforce, make up for some of this past discrimination. This could also be very nicely applied to things like seniority rights where you don't want to dismantle something at all, and we have a strong belief that that was originally also an equity initiative.
Sometimes you have to do something temporary. And we have to admit to ourselves that there is preferential treatment in this; we can't get away from that. I just think preferential treatment has been dealt with in such a negative way. I don't think people understand the concept of making up for past discrimination.
Mr Tilson: How long would it last?
The Chair: Sorry, Mr Tilson. Mr Schryer, we've run out of time. It was very informative. Thank you very much for coming and presenting your brief to us today.
BRUCE RYDER
The Chair: Professor Bruce Ryder, welcome. You have half an hour. Please begin any time you're ready.
Mr Bruce Ryder: Thank you, Mr Chair. I'd like to commend the committee for I think setting a very good example in meeting its own goals and timetables.
My name is Bruce Ryder, by the way. I'm an associate professor at Osgoode Hall Law School at York University. I specialize in my teaching and research on human rights issues and I've also been active at the law school and across the York campus as a whole in designing and implementing our own employment equity plans.
I apologize to the committee. I haven't been able to prepare a written brief today, although I hope to prepare comments on both the act and the regulations prior to the deadline in October.
I'm here today speaking in a personal capacity as a person interested and committed to these issues and to speak in support of the bill. I fully support the objectives of the act; namely, to overcome barriers to equal participation in employment, to promote workplace systems and environments that are responsive to the diversity of Ontario's workforce and to maximize the potential of all of our human resources. I think these are objectives we all share.
I also fully support the implementation of employment equity through compulsory legislation. I believe Bill 79 is a very useful initiative, a very creative and forward-looking response to this problem. I don't think there is much doubt that our current legal structure has proven inadequate in removing barriers to equality in employment; of course, by "our current legal structure" I mean a system of voluntary compliance coupled with employee access to complaints mechanisms through courts or tribunals.
That type of system, voluntary compliance coupled with a complaints-based process, has simply proven inadequate to remedy systemic barriers. I think the basic principle we're operating on here is that the systemic barriers require systemic remedies. It's from that point of view that I evaluate Bill 79, from the point of view of whether it adds something to what we already have; that is, does it provide effective systemic remedies that go beyond the current complaints-based mechanism? I intend my comments to be constructive, but I do think there are major flaws in the current bill when approached from that point of view; that is, does it provide effective systemic remedies?
I also have concerns, as I'm sure most employers and most employees do, with the administrative burden that the act will impose. I don't intend to focus my comments on that issue today except to note that at York University, for example, we have just -- and many other employers in the province may well be in this situation as well -- completed a compliance review under the federal contractors' program. It's very important to us at the university that an attempt be made, as much as possible, to not duplicate the efforts we've made in that process under this legislation. I think the regulations have gone some distance in ensuring that this will not occur, but I think there are still some efforts we can make in that direction to make it clear to employers in our situation to what extent we have to redo surveys and reviews of employment systems and so on.
Also, from the point of view of administrative burden, one thing that stuck out to me in the regulations is the requirement that surveys be reconducted after nine years, something that seemed to be inappropriate, given that there's an obligation of undertaking a survey and keeping it up to date. If that is done, I think the requirement that it be done all over again after nine years is unnecessary.
Anyway, I don't want to focus on the questions of administrative burden, although they are very important for everybody. I want to focus my comments today on what I perceive to be a lack of adequate mechanisms in the act for ensuring compliance with its obligations, that is, for ensuring the accomplishment of its objectives.
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I firmly believe that without strong and reliable standard-setting and compliance mechanisms, this legislation risks doing more harm than good. The good that will come even with weak legislation is that there'll be some symbolic support for the principle of employment equity; there will be some heightening of consciousness, presumably, about the scope of existing inequities in the workplace, and that in itself is of some value. But changes in awareness will not necessarily lead to real change for the designated groups, and I'm concerned that harm will come from weak legislation, obviously in the sense that it will fail to quickly address the burden imposed on designated groups and to quickly take advantage of all that Ontario's workforce has to offer.
As the Employment Equity Commissioner put it in her Opening Doors report, the need for employment equity is urgent, and urgency means that there can be no equivocation with respect to the kinds of progress that the act demands. Weak legislation will also lead to a great waste of administrative resources. My familiarity with the requirements of the federal contractors' program makes me well aware of the substantial resources that need to be devoted to the implementation of employment equity and the development of plans by employee groups, by employers and by members of designated groups, who ought to be included in the process of developing employment equity plans.
There's a potential for a great waste of administrative resources here, and that of course hurts everybody if the legislation is not effective. Furthermore, I think weak legislation risks maintaining rather than eradicating employment inequities by creating the illusion that efforts towards real change are being made.
Those are my major concerns, that there's a possibility this legislation could just paper over the problems we're seeking to address, and I think that's something this committee ought to take very, very seriously. I fear that in its current form Bill 79 and the accompanying draft regulation may indeed be weak legislation.
I want to focus on what I see to be three interrelated problems with the means of ensuring compliance with the obligations in the act. Those three problems are: first of all, the lack of standards, or what I see to be a lack of standards, for determining when obligations are or have been fulfilled; secondly, the lack of adequate mechanisms for ensuring accountability; and finally, what I see to be a lack of adequate penalties.
My comments are fairly specific in focus. What I haven't addressed is that there's much in the legislation that I think is very good, but there are these specific problems that I think may seriously undermine what we're, hopefully, seeking to accomplish here.
Those three interrelated problems may make it far too easy for an employer and/or employees to simply go through the motions in complying with the act's part III obligations without any real commitment to change. As I mentioned, I think that could be a serious waste of time and effort for everybody concerned.
Let me go through briefly what I see to be the three interrelated problems.
First of all, the lack of standards for determining when obligations have been met: The part III obligations, I think the most important part of the act, tell employers what they have to do but not whether they have to do it well or effectively. For example, section 11 specifies the components of an employment equity plan but makes no attempt to ensure that a plan reflects commitment to attaining speedy change. Section 12 says that an employer must take all reasonable efforts to implement a plan, but nowhere defines what all reasonable efforts entail.
The current draft regulation doesn't remedy these problems but reproduces the same approach in greater detail and with further qualifications on an employer's obligations. That same approach is essentially a checklist of things that have to be done. What I see missing is any kind of emphasis on quality control. I think there's a real risk here that what we're doing essentially is asking employers to build a vehicle without imposing any requirement that it's actually going to be capable of going anywhere.
Section 23 of the regulations states that numerical goals and presumably timetables, although they're nowhere mentioned, must constitute reasonable progress toward achieving a representative workforce and must be reasonably achievable by working in good faith. Again, there's no specification of what "reasonable progress" means, not even an enumeration of factors to be considered in deciding whether an employer's targets are in fact reasonable.
So I feel quite strongly that we need clear standards for what are reasonable targets, what are reasonable goals and timetables, both in terms of the percentage of employees and the rate of change. We need some guidance on what is reasonable in the context of numbers and timetables.
I'm sure there has been much discussion of this in the submissions to the committee, and I don't want to deny that the need for ascertainable and meaningful standards must be balanced with the need for some flexibility to accommodate unforeseen developments, to accommodate the diversity of workplaces covered by the act, but at the moment it seems to me that the bill leans much too far in the direction of flexibility and has essentially abdicated any standard-setting function.
The second concern I wanted to raise is the weaknesses in the accountability in terms of the content of the plan and progress in implementation. Accountability, I think, can be divided into the provisions that deal with consultation and the provisions that deal with information. As far as consultation is concerned, I think the provisions for joint participation of unionized employees in consultation with non-unionized employees are valuable and to be commended. Indeed, those provisions mirror essentially what has happened at least in our workplace under the federal contractors' program, although it's not required under the act. It just makes a lot of sense.
However, in terms of consultation, I see a major flaw in the current act in that it doesn't require consultation with the designated groups, whether within or outside of the workforce. The regulations do mention, in subsections 35(2) and 35(3), that the employer should consult with employees who are members of designated groups and also direct the employer to receive information from the commission in the absence of employee representation from those designated groups, but I don't think that's enough. The principles of employment equity require that members of designated groups be given a greater opportunity to help identify problems and design solutions that after all are supposed to improve their position.
One way of going about that, for example, which I think could be done quite easily, would be to amend the act to include a provision -- this is one idea -- stating, for example, that consultation with and some acceptance of the recommendations of members of designated groups is a factor that ought to lean towards the conclusion that an employer has complied with the obligations under the act. Something like that could be quite simply added to the act. I found it quite startling that there was no provision for consultation with designated groups in formulating and implementing plans.
The other aspect of accountability is the information requirements in the act. The act contains some provisions relevant to the provision of information to employees and to the commission, but again I don't think it goes far enough. Section 16, for example, requires employers to post information on the act, as is required in the regs. There's no requirement to post a plan. The current regulations only require posting of a summary of the plan and accessibility to reports prepared under the act. Thus, even in the regulations there's no guarantee of employee access to the plan itself.
The bill at the moment inexplicably, in my view anyway, only requires that a certificate be filed under the act, subsection 11(2). The commission has the discretion to ask that a plan be filed under subsection 11(3). Then of course there would be reports that will be submitted in accordance with the regulations under section 18.
So in sum, the bill contains no guarantee that the commission will have access to information that will enable it to effectively monitor employers' performance in meeting the act's obligations as a matter of course. Again, I think a very simple amendment could be put in place. I would suggest that the bill be amended to require the filing of a plan with the commission and a posting of the plan in the workplace in the manner that the regulations currently require that a summary of the plan be posted. I don't understand why the bill currently doesn't have such a simple requirement and a basic one in terms of accountability.
The third problem I wanted to briefly speak to is the lack of adequate penalties for non-compliance. There are strengths and weaknesses in the bill, again, and I'm just going to focus on what I see to be the weaknesses. My concern is that apart from the contract compliance provision in section 49 there are no penalties in the act that follow immediately from a failure to comply with the part III obligations. If there was a requirement in the act that plans be filed with the commission and there were clearer standards set in the act by the commission, then the commission could be empowered to immediately issue orders and impose penalties for non-compliance upon receipt of deficient plans. There's no such provision at the moment and I believe the bill could be strengthened immeasurably by such a provision.
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At the moment, compliance orders can be imposed, of course, after an audit by the commission. The failure to comply with an order can give rise to a penalty under section 38, and applications can be made to the tribunal, also giving rise to a compliance order under section 33 that can give rise to a section 38 penalty.
There are a couple of problems that I want to point to. First of all, the commission's ability to issue orders under section 24 again in my view inexplicably omits section 12 of the act, which means that the commission lacks the power to issue a compliance order for failure to properly implement an employment equity plan. Section 12 is the section that deals with implementation. Why that crucial section was omitted from section 24, I have no idea.
The larger question to be addressed here, however, is, does this system of compliance orders move beyond, as I said, what ought to be the bottom line here in terms of designing effective employment equity legislation? Does it move beyond a complaints-based system to one that can implement systemic remedies?
That question requires that we consider whether the presumably random audit power that the commission has, coupled with the ability to initiate hearings before the tribunal, effectively creates an incentive for all employers to comply with the act. Those who have entered or are interested in entering into contracts with the government probably have adequate incentives, but what about other employers? They'll only be subject to compliance orders if they're caught out by an audit or by a complaint. We have these problems I've already identified in terms of information provision.
There are very limited incentives here for complying earlier and effectively. The ability of the commission to issue binding compliance orders that go beyond the mere fact of undertaking a survey, the preparation of a plan etc, to actual commitment and progress is crucial, in my view. Otherwise, we're left essentially with the complaints-based structure, applications to the tribunal, that will reproduce many of the deficiencies of the legal status quo.
To summarize the penalties sections of the bill, it seems to me that it gives adequate powers to both the commission and the tribunal to force the most recalcitrant employers to undertake the basic steps required by the act; that is, do your survey, review your employment systems, come up with some sort of plan. I think the powers in the act are adequate for those purposes. But in my view it gives inadequate powers to the commission to in a more systematic way remove what is certain to be the much more widespread problem of employers simply going through the motions, papering over the problem without really changing it. Many plans produced under this act, in my view, may turn out to be just window dressing.
The Chair: Mr Ryder, just to point out, there are only 12 minutes left, which would leave four minutes to each caucus.
Mr Ryder: Okay, I'll just wrap up. For the reasons that I've described, I would urge the committee to make recommendations that would ensure that the act's obligations are backed up by more carefully defined standards, methods of accountability and sanctions that together will better and more rapidly ensure that employers make the promise of equality in employment real. Otherwise, I'm afraid the legislation could turn out to be a paper tiger, and a costly one at that.
The Chair: Thank you. Mr Winninger, four minutes.
Mr Winninger: I thought you made your arguments quite clearly and forcefully and I'm looking forward to receiving them in written form. In the meantime, though, I'd like to deal with some of your points around standards, around accountability and around penalties, if there's time. I know there may be other people with questions.
First of all, on the matter of standards, you seem to appreciate that the need for clear, binding standards has to be counterbalanced against flexibility and diversity in workplaces. We think at this point in time, I believe, that we've reached the appropriate balance. Clearly, you don't and you'd like to see us move towards more binding standards perhaps. Is that true?
Mr Ryder: I'm not sure whether it's more or less binding, but certainly more clearly defined I would like to see. I don't see much attempt to define standards in the act itself. It states general principles, but there isn't much in the act -- there's a little bit more in the regulations -- about what would constitute, for example, reasonable progress. I'm not sure there's much at all in either the act or the regulations that can help us sort of flesh out what is reasonable progress.
I'm not saying define it in a way that holds people to rigid timetables and rigid goals; I'm just saying we need to have some context to ascertain what is reasonable. How is the tribunal going to decide? What sort of factors should it look at? I think we can have much more.
Mr Winninger: The term "reasonable" is almost a term of art in some legislation, and as a lawyer you will appreciate that.
Mr Ryder: It's a lawyer's copout most of the time.
Mr Winninger: A lot of the case law deals with what "reasonable" means. I know time is short, so I'd just like to move on to --
Mr Ryder: I think it would be very easy, for example, to have a list of criteria saying, for example, "In deciding whether an employer's plan does indeed constitute reasonable progress towards reasonable goals, the tribunal or the commission will consider the following factors: How quickly is this closing the gap? Are there" --
Mr Winninger: Maybe you could present some criteria in your written submission.
Mr Ryder: Yes.
Mr Winninger: On the issue of accountability, which I'd like to get to as well, you mention that there's no vehicle, as you saw it, for the advice of the designated groups to be communicated to the minister. I would just point out -- and you're probably familiar with section 45, which provides for the establishment of advisory committees, including representatives of the designated groups to advise the commission.
Mr Ryder: Right. No, I didn't mean to address input by advisory groups directly to the commission, but rather input by members of the designated groups directly to employers and employees engaged in the production of plans for their particular workplace. On that point, there's nothing in the act, although there is some provision in the regulations, but I believe the act could incorporate some commitment towards consultation with and serious attention to the input of designated groups in the formulation of plans. It's obvious, certainly in my experience, that we've benefited enormously from that type of consultation.
Mr Winninger: Lastly then, if you feel that the quality review built into the statute is inadequate, and I would point out that the quality review would flow from the audit functions of the commission and also from the kind of supervisory authority of the tribunal, if there are mechanisms that you can suggest that would provide a more solid foundation for quality review, I would suggest you put them in your written submission to us.
Mr Ryder: I think some of the mechanisms that are in the act are very good. My main suggestion, and I will write it up, is if there was slightly more precision, or maybe much more precision, in the definition of standards and there was a requirement that plans be filed with the commission, if those two changes were made, it would be very easy for the commission to issue orders requiring better-quality plans without going through extensive audits or hearings before the tribunal. That would lead to a much broader ability to achieve systemic change as opposed to piecemeal change, which is what we're trying to move beyond here. Right?
The problem with audits and tribunal hearings is that there's going to be a limited capacity to undertake many of them at once. We all know the kinds of backlogs, for example, that other tribunals have experienced. So a streamlined procedure for ensuring quality review would be extremely desirable.
Mr Curling: Professor Ryder, you have articulated exactly some of the concerns that I have raised about weak legislation and what it leads to, because as you said, it's a matter of waste of resources and sometimes really to create this illusion that something is happening and when it gets down to it, nothing happens. What we have is more chaos in our society than anything else.
Because of the limited time too, I'm just going to ask you to comment if you have looked very much at the Human Rights Commission, which actually deals with much of the discrimination or which should be dealing with all discrimination. It seems to me employment equity wants to be a kind of kissing cousin that comes in and would like to do some of that kind of work itself.
Do you want to comment really on what could be done with the Human Rights Commission in order to make maybe this Employment Equity Act a bit more effective, or do you see it playing any role at all in supporting this bill, or what should be done?
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Mr Ryder: I think that's an interesting question. I can't say I've given it a great deal of thought myself at this point, but I think it's clear that there ought to be a close relationship between the two tribunals, certainly the commission and the tribunal under the Employment Equity Act, and the Human Rights Commission. I think that will develop quite spontaneously and naturally. I don't see that there is likely to be any conflict, for example, in the objectives and missions of the two tribunals. They will complement each other. I think there have been some submissions about ways in which the provisions of the two acts could be better integrated. But sharing of information and strategies, it seems to me that's the sort of thing that will evolve, hopefully, when this act gets passed.
Mr Curling: Let me ask you then, in this respect, because I presume -- as I heard you, it seemed to me you're following through this act, through this process, step by step. How long do you think it will take an individual who had a complaint against the employment equity plan within a company, considering that this will not come into effect in another three years anyhow, it depends on the company, how long would it take from that time, you feel -- did you see anything in the act that tells you a time when the commissioner would be dealing with this and when the tribunal would be dealing with this, and then it may become a Human Rights Commission case? Because you said, "I'm telling you, it has to be entwined," because they could maybe prove that the company has done reasonable efforts and all those things and then say: "They have done their thing. I don't see any evidence. Take it back to the Human Rights."
Have you followed it through in that way to say that it does not, as you would put it, give people the illusion that change is happening, and this individual comes before the commission now and makes a complaint? How long do you see it would take a normal complaint to be resolved? Have you followed that through?
Mr Ryder: I'm not sure how long it will take. Are there provisions in the act that set out specific time frames? I don't believe so, or at least --
Mr Curling: I think you've answered my point, then, that there seems to be no time frame.
Mr Ryder: But I think it's important to keep in mind that the Human Rights Code and the Employment Equity Act will be dealing with different kinds of complaints, interrelated complaints. But under the Human Rights Code, largely what we'll have are complaints of discrimination against individuals and what will be taking place under the Employment Equity Act will be complaints that an employer has failed to in some way produce this process and start implementing this process for systemic change. It's possible, of course, that the same employee could be aggrieved under both acts, but I don't foresee there being any real problems in terms of integrating the operation of the two.
Mr Curling: I hope the complainant knows that or can complain when he comes before either the commission or the Human Rights.
The Chair: We have two speakers: Ms Witmer first, and then Mr Tilson.
Mrs Witmer: It's regrettable that we didn't have your presentation, because I think there's a lot of information, but unfortunately we didn't have a chance to prepare ourselves very well.
Mr Ryder: I didn't have a chance to prepare myself very well.
Mrs Witmer: No. What the government is attempting to do, and it repeatedly tells us, is to make the access to employment fair and equitable. What you're suggesting certainly would, I think, add some rigidity to the system. I think there would be less flexibility. Would you agree? We hear constantly about regulations in this province suffocating new investment. We hear about bureaucratic red tape. I guess what I hear you talking about is more regulation, more red tape. What incentive, then, is there for anybody to create new employment opportunities?
Mr Ryder: I don't think I'm suggesting that there be new red tape. I'm just suggesting that given the new administrative procedures that this act is proposing to implement -- and I do support them; call it red tape if you like -- that this red tape be capable of accomplishing something meaningful.
I'm not proposing additional red tape; I'm just proposing that the administrative burden employers and employees have to take on have real benefits for us all in terms of achieving the goals of employment equity.
I think I would put it as more as proposing that this legislation have a little more bite. I think you're right to say that I would characterize my submission as being more rigid because I see the act now, in seeking to balance the competing concerns that you've heard from people through the course of the development of this legislation and through the consultation process -- I think the balance has been struck too far towards flexibility and too far away from what you'd characterize as rigidity and which I would characterize as effectiveness.
Mr Tilson: I appreciate your comments to Mr Curling specifically. It's an issue that I raised yesterday and which seems to be discussed more and more, and that is the issue of comparing the Human Rights Commission and the Employment Equity Commission.
Yes, I understand that one is for an individual and one may be for a group, although it could be for an individual as well. I guess you look at the cost that's being put forward in the estimates for the Employment Equity Commission alone as being $6 million at a time when we've got social contract and people having their wages frozen and all this sort of business.
If it's possible to amalgamate the two groups -- I'd like to hear people who have looked at this or who have had some experience with the Human Rights Commission. You haven't said, but I gather the way you're talking, you've had some experience or at least observed them. Whether that is possible notwithstanding the fact that it is -- and I understand that basically for an individual, because that's a lot of money.
Mr Ryder: It certainly would be possible to accomplish the goals of this legislation giving the Human Rights Commission a mandate to deal with individual complaints of discrimination under the Human Rights Code and a mandate to perform the role or roles similar to that performed by the commission or the tribunal in this legislation.
Mr Tilson: Particularly when it's being alleged that they can't do their job now, I suppose.
Mr Ryder: Yes, but I'm sure the two bodies will be closely interrelated in practice. The Human Rights Commission, as we all know, has an enormous burden as it is. It has a huge backlog of cases. People have been dissatisfied with its performance. It wouldn't be feasible to add these responsibilities to the Human Rights Commission without substantially augmenting the resources and the capacities of that body as it now is, and I'm not sure the cost would be so significantly different.
The kinds of new tasks this legislation requires seem to me to fully justify the creation of a new body.
The Chair: Mr Tilson, I'm sorry, we don't have enough time. Professor Ryder, thank you for your presentation. I think we all found it very informative.
ROD MCCALLUM
The Chair: The next presenter is Rod McCallum. Welcome, Mr McCallum. You have half an hour for your presentation. Please begin any time.
Interjections.
The Chair: We had Professor Ryder before. That's today's agenda.
Mr Rod McCallum: My name is Rod McCallum. I'm a resident of Toronto. I'm here as a disabled person and my circumstances are rather unusual; I think some of you may find them horrifying. I have a number of extremely serious allegations to make against this government, against Metro police, against another police force and so on.
Now, I have comments in particular on the legislation in terms of how I may be helped to get back to work. I would like to make my comments about my situation in terms of how the legislation may or may not help me, and I have great doubts that there is anything in this bill to help me.
The Chair: Mr McCallum, can I ask you, do you have a case and is it in the courts by any chance?
Mr McCallum: Not against the people I'm talking about. There are two court cases pending, but it doesn't involve Metro police; it doesn't involve the people I'm talking about.
The Chair: Okay. Let's proceed, please.
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Mr McCallum: First of all, I'll make some general comments on the legislation as it's been proposed. I do object to the fact that women are to be regarded in this. I think it is sexist. I think it is really inequitable to have women treated as a class that will receive preferential treatment, and that's all I'm going to say about that.
The legislation does not appear to address the issue of individual cases, and I think that's fundamentally important. I come here as a man who -- even with all your combined efforts you may have a great struggle on your hands to get me back to work. Even though I'm very capable -- I have great credentials, I have excellent job references -- I can't find a job. I'll get into the issues of that in a moment.
I believe the penalties of $50,000 that are quoted in this legislation are insignificant in terms of the types of employers you may encounter who will just laugh at that. My last employer was IBM Canada Ltd. IBM, worldwide, has something like 300,000 employees. It's a multinational giant. If you say, "We're going to slap you with a $50,000 fine," they will laugh. It would be worth their while to simply pay it and forget about re-employing someone like me. I was fired without just cause. I won't get into all the details, but it's really, I think, an interesting story of just what transpired to cause me to be fired.
I think a penalty of $50,000 per day for every day that a company like IBM was in defiance of a tribunal finding or order would be appropriate.
In section 5 of Bill 79, first are some what I would call loopholes which may permit the parties that are involved in my particular case to avoid penalties, to avoid an investigation. For example, IBM could say that I have a handicap, and that's true. I have been handicapped by external forces, by others, but I don't come here as a person in a wheelchair. I don't come here as a person with a significant disability that could be overcome. I have been accepted now by the Ontario government as a disabled person. I suffer from severe and chronic depression.
That depression has been caused by mistreatment by others, specifically the Metro Toronto police; the Victoria police in British Columbia; the manner in which the Canadian Police Information Centre computer system is being run -- that has been used to smear me; mistreatment by six different ministries of this government -- that includes the Ministry of the Attorney General, the Ministry of the Solicitor General, the Ministry of Correctional Services, the Ministry of Health, the Ministry of Community and Social Services and the Ministry of Labour. I've had problems with all of them.
Finally, I had to say to a doctor, "I can't deal with this any more," and he has said that I am officially a disabled person due to chronic depression. Depression does not affect my rationality. I am full of anger, I am full of bitterness and at times I am full of rage, but it does not affect my rationality. I can explain what has happened to me. I am telling you that this notion of a handicap where IBM could say, "This man is handicapped by these external forces" is not sufficient. That loophole has to be taken out. No one should have to face an accusation that he is handicapped by forces beyond his control. Whatever barriers exist should be knocked out.
Special employment, that could be used by IBM to say: "Well, we have an issue of confidentiality here. We deal with a lot of confidential information. We can't have someone who's a security risk." I have been accused of being a security risk. This has never been put in writing; it hasn't come from IBM. People have made a number of allegations against me. I've been accused of being a drunk; I've been accused of being mentally ill.
CPIC currently states that I am violent and dangerous and anti-police. I complained to the BC police commission about the term "police hater." That was removed. Now someone has put "anti-police" back in. According to a senior detective -- in fact the man who is in charge of detectives at Metro police -- the term "anti-police" is substantially different from "police hater," and I do not agree with that.
I don't see that I could ever get back to work until these issues are addressed and somebody looks into why I'm declared a violent person when I have never hurt anyone or attempted to hurt anyone in my entire life and I have never been convicted of any offence involving violence. I fail to understand why I'm considered to be dangerous. It used to say "mentally unstable." That has been removed.
I do not know who has put this in. I know a lot of the people involved, but these are anonymous people moving around in the dark and I don't know who exactly has been doing this. I don't know the people who have actually entered the information or ordered that the information be entered.
These loopholes have to be closed. No employer like IBM should be able to say: "This is special employment. We have security concerns, and we can't have a man who is constantly in trouble with the police."
I have now been subjected to eight false arrests since 1988. I have been arrested and arrested and arrested and arrested. Of the last four arrests since I moved to Toronto to try and get back to work, I have not been convicted of anything in relation to those four arrests. In three cases I did not receive a trial. In one case I did receive a trial and the judge threw out the charge.
I have great concerns about subsection 6(4), which specifically excludes the police forces and excludes them from obligations and enforcement.
In order to find out what has happened to me, there's going to have to be an investigation, if there is some willingness to help me get back to work, but that means you have to accumulate all this information. I can't even accumulate it. They have files about me I can't even get my hands on. This matter has gone as high as Susan Eng. She has requested the chief of police to conduct an investigation. It's been handed to Staff Superintendent Dick. He has conducted an investigation. I can't see the results of the investigation. Everything has been hidden. It's considered confidential even though it concerns me.
How the tribunal would lay its hands on any information concerning my predicament when subsection 6(4) specifically excludes the police from enforcement -- they could not be fined for failing to turn over documents. I think that should be addressed.
I find it in general highly objectionable that there is now apparently a group within the government that is prepared to assist me to get back to work -- I think that's the function of the Employment Equity Act, or the tribunal or commission -- but that the wheels will only start to turn once I'm disabled. I fail to understand why I've been allowed to be disabled through five years of constant harassment and mistreatment.
I've been brutalized. Last summer I was beaten severely by Metro police. The year before that they put me out of work. I was not able to work at all in 1990 in Victoria, BC, due to police harassment. I was not able to work last year due to police harassment. I've had my tire flattened, I've had my car rammed, I've been kidnapped off the street and beaten, I have been kidnapped from my home. I don't think any one of you in this room would like to undergo the sort of treatment I have undergone.
When I finished university -- I attended the University of British Columbia -- I went to work for five years for the federal government. I worked in the field of earth physics, because my background at university was physics. After that I worked for five years for the provincial government in BC as a contract computer programmer. I've worked for Dome Petroleum. I was last employed, as I said, for IBM. Yet Metro police seem to consider me to be "a nut, a monkey and a flake."
I would like to think that an act would have teeth sufficient to fully investigate any situation where an innocent person was put out of work, particularly when it occurred through criminal acts of those who are supposed to enforce the law.
I have complained and complained and complained about this matter until I am blue in the face, and this is the first opportunity where I have had the chance to sit before a group of MPPs. I'm really appreciative of that and I thank you for bringing me here today to talk about my situation.
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It is difficult to understand, because the scope of it is now enormous. I want many police officers charged with criminal offences. I want police officers in British Columbia charged, I want police officers in this city charged and I want people within this government charged. I want to know why this was done and I want the mechanism by which it has been accomplished dealt with so that this can never be done to anyone else again.
When I lost my job with IBM, Metro police saw fit to cause me to be imprisoned for a period of 35 days, following which I did not receive a trial. The charge against me was withdrawn. There was a case in the Toronto Star recently of a man who was charged with attempted murder. He was kept in jail for seven days, and this was a big thing. The paper reported on it. I took my story to the Toronto Star and they did not seem to think that it was worth dealing with, because, in the words of the reporter, I was the author of my own misfortune.
I was charged with simple common assault in which no injury to anyone was alleged. Someone simply lied to the police. That is one of the lawsuits that is currently pending. That person is facing a claim of $200,000 now for what they have done, simple common assault. I had a job, I had a set place of residence in Scarborough. I was kept in jail for 35 days and then, on the day I was assigned to have a trial, they withdrew the charge. I lost my home, I lost my job and, following that, as I say, I'd been arrested three more times and in no case convicted of anything, with the exception of my beating. I was convicted of my beating. In other words, a police officer punched me in the face last year so hard that he broke his hand and I was convicted of assaulting him. That is currently under appeal. Following my punch in the face when I was down on the floor, I was repeatedly stomped and kicked. These are not minor things that have gotten me depressed; they're major things: being put out of work, receiving a beating and so on.
You will not find me in support of this legislation unless the legislation deals with my case. I think my case is one of the most difficult cases that you could put the equity act against and try to resolve it, because you will have obstruction by Metro police, you'll have obstruction by Victoria police. I have struggled for five years to clean this mess up and I can't do it. That's why I finally had to say, "Look, I can't work, not under these conditions." I've been put out of work three times; I've been injured by the police three times.
This will haunt me for the rest of my life until somebody deals with it. The penalties must be boosted to what to some people might seem an exorbitant sum, but it will get the attention of IBM and will get the attention of Metro police. That loophole where the police can avoid investigation must be closed. We must have no barriers in terms of investigating why a person is out of work. Who has caused this to happen?
The Chair: Mr McCallum, there are 10 minutes left, if you'd like to --
Mr McCallum: Yes, I'll take questions.
Mr Curling: I really don't have any questions. I'll make some comment, Mr McCallum. I was trying to find how this bill will help you or whether this bill has relevance to your case. Of course I can understand your emotion, that you have to have some place to express the frustration and the turmoil you've gone through.
I'm not quite sure if Bill 79 would deal with your case specifically. The individual before you made a comment, as you know, that Bill 79 seemed to do with corporate or larger-scale firms in terms of employment equity, and Human Rights and the other institutions deal with specific cases. I'm not quite sure if this bill will address the concern you raise.
All I will say is that I hope your case, which is, as you said, before the courts in some respect, not in that specific one you stated, will have the redress it has. I'm not just quite sure: What is it that I or this committee can do about your case?
Mr McCallum: To say that you're going to have an Employment Equity Act and then you find the case of an innocent person who has been put out of work due to external factors and put in a circumstance where you can't really expect an employer to hire a violent, mentally unstable drunk, as I have been described by the police -- that's really a joke if you have an act like that. There's no employment equity there for me, yet I've been classed as disabled by the government. I've been accepted. I receive a cheque every month from family benefits. I don't see the point.
The second point I would like to make on your remark is that this is not before the courts. I struggled for two years to take this to the legal aid plan and get funding to sue Metro police, and I kept being obstructed. The last time they delayed the funding so long that the six-month limitation period on the Public Authorities Protection Act cropped up and they said, "You're out of time." That was because they obstructed me so long. I was then just on regular welfare and I took $125 of my welfare money to file my own lawsuit, and then the judge said my lawsuit was frivolous. That's the kind of justice system you have going in this province, where I can be put out of work, beaten by the police, and then a judge says, "Your lawsuit is frivolous." I think it occurred just because I didn't have a lawyer, and I didn't have a lawyer because I was too poor to afford one.
So you can't say the appropriate forum is the courts, because I've been blocked at every turn. I have been struggling for two years to get this into the courts and I'm telling you that I have found it virtually impossible to sue the police. I also think that must be addressed. But you can't say there's some other forum; I don't think there is. I don't think the Human Rights Commission will deal with this case.
Mr Tilson: I have one question, Mr Chair, which is a question that Mr McCallum has asked, and that is subsection 6(4), which is the exemption of police forces with respect to parts III, IV and VI. I'd like to take this opportunity to ask any of the ministry officials who are present. I believe that was the question that was asked by Mr McCallum and it's a question that I have too: the rationale for why that exemption has been put forward in this bill.
The Chair: If it's all right with the other members, I would like to ask the ministry staff to answer the question.
Ms Katherine Hewson: Police are exempt from this act because they are covered under section 48 of the Police Services Act. There is a specific regulation dealing with employment equity for police services under that act. Since they have their own particular employment equity program under that act, it was felt that it was not necessary for them to be covered by the more general application of this act.
Mr Tilson: Can I ask another question on that?
The Chair: Of the ministry staff?
Mr Tilson: Yes.
The Chair: Then that would be your last question.
Mr Tilson: I'm not familiar with section 48 of the Police Services Act. My concern is, is it the same as this bill? Does it go further? Does it not go as far? Maybe that's impossible to answer in three sentences.
Ms Hewson: It probably isn't impossible to answer in three sentences. I'm not an expert on the Police Services Act. Actually, when you were discussing it earlier, I was trying to get some further information to provide to the committee. I could provide some information more specifically tomorrow.
Mr Tilson: Maybe I could leave that with you, because it is of interest. If it's the identical provisions, then that's fine, but if it's less or more, I think the committee should be aware of that.
The Chair: Very well. Thank you, Ms Hewson. The government members are next.
Mr Wiseman: On that point, if you could bring in the wording of those sections, I would appreciate seeing those too.
Ms Hewson: Yes, I will.
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The Chair: Other members with questions? Do the government members have a question of Mr McCallum?
Ms Carter: I appreciate that you've brought your problem before us, but I think we are in a difficult position in that we can't look at the whole background in detail of what your problem is. We only know a very limited amount. Obviously, we're in no position to take action on your specific case, but I do share Mr Curling's question as to whether that has any direct bearing on this particular act that we're discussing.
Mr McCallum: As I said at the beginning, you can only judge an act to be effective if it will deal with the most effective case. If you find a case the act doesn't cover, and we have a disabled person, you just have to throw up your hands in despair and say, "Unfortunately, you'll never be able to work again in your entire life because there are barriers we can't deal with."
Ms Carter: But I think in this act we're looking at what we call systemic proposals that are going to change the whole structure of employment, if you like. There will always be individual cases that fall through the cracks whatever your general structure is, and it would seem to me that you would come more into that category. We've had IBM here today telling us how they employ large numbers of disabled people, so that kind of underlines the fact that this is a very individual problem. I would've thought the Human Rights Code would've been a more appropriate individual recourse.
Mr McCallum: I've had a look at the Human Rights Code and I can only appear before it with a complaint on the basis of being a disabled person. Once again, I find it appalling. I don't want to be let fall through the cracks, and I also don't want to have to deal with this as a disabled person when I can get back to work with a little bit of help. As things stand, I will never work again; I'm quite sure of that.
Every time I have managed to get back to work, I've been put out of work by the police. I came to Toronto from British Columbia to escape police harassment. I only worked at IBM for 13 weeks before I was once again thrown in jail. As I say, I didn't even receive a trial after spending more than a month behind bars, and I was kept in solitary confinement. I was denied any access to call a lawyer for 10 days. Are you going to let me fall through the cracks?
The Chair: We have run out of time. Mr McCallum, thank you for your presentation. I do hope that justice will prevail as you proceed with your own case.
Mr McCallum: I'm determined that it will.
The Chair: The Indo-Canada Chamber of Commerce group was scheduled tentatively to come. They've cancelled.
NATIONAL COUNCIL OF CANADIAN FILIPINO ASSOCIATIONS
The Chair: I understand there's someone here from the National Council of Canadian Filipino Associations. Would you please identify yourself, because we don't have your name.
Ms Carmencita R. Hernandez: Thank you for inviting me here. My name is Carmencita Hernandez. I am the regional vice-president of the National Council of Canadian Filipino Associations. I'd like to read just excerpts of our submission to you in the interest of time.
Who are we? The National Council of Canadian Filipino Associations is a federally incorporated organization representing member associations across Canada. It aims to contribute to a viable, visible Filipino-Canadian community that can actively participate in the social, cultural, political and economic life of this country.
The national council serves as an effective voice of the Filipino-Canadian community and it is committed to working towards the development of a strong community proud of its cultural heritage and active in the building of a just, humane and prosperous society.
There are eight regional chapters of NCCFA.
We have been actively involved in the consultations of the office of the Employment Equity Commissioner. We also made a presentation on the proposed employment equity legislation last year.
The NCCFA has decided to focus on the following particular issues in this submission.
We see Bill 79 as not mandatory employment equity legislation. The proposed Employment Equity Act only provides an outline for the legislative scheme. All the other implementational details and certain essential principles of employment equity are going to be dealt with by the regulations.
We are very concerned that to include fundamental employment equity principles in the regulations may water down some of these elements. Therefore, we say that it is imperative that it should be included in the statute itself. It is also imperative that the definitions of designated groups, numerical goals and timetables and various qualitative measures, as well as the reporting mechanisms, be specified in the legislation as opposed to the regulations.
Some of you may ask, what is in a name? There are very serious concerns.
With regard to the definition of "racial minorities," some advocacy groups are concerned that the issue of subgroups is not being addressed. It is underscored that the issue of subgroups be dealt with both as a definitional issue and also as an issue of monitoring.
While the proposed definition for "person with a disability" is consistent with the feds' employment equity legislation, it does not address the issue of how disability impacts on the limitations of work.
We recommend that the definition of "designated groups" be provided under the act and not in the regulations, and also that the issue of subgroups be dealt with to ensure equitable representation for all minorities in the workplace. It should be dealt with both as a definitional issue and an issue of monitoring. It is also recommended that the definition of "person with a disability" should also consider the issue of how disability impacts on the limitations of work.
With reference to numerical goals and timetables, we see this as one of the basic and fundamental elements of employment equity legislation. We are very concerned that the regulations allow employers to set their own goals with regard to the proportion of opportunities for entry into the occupational group. There is no mention of any standards to be set by the Employment Equity Commission in setting up these goals. Also, the word "entry" seems to apply only on hiring and promotion. It does not affect other things like firing, layoff or transfer to another job.
We recommend that the employer set up numerical goals and timetables with respect to its opportunity for change, to be defined to include hiring goals as well as composition goals.
Then we begin to look at the positive and qualitative measures. Although the act talks about the provision of positive measures in the employment equity plan with respect to the recruitment, retention and promotion of members of the designated groups, the regulations do not have provisions for positive measures. The regulations merely refer to qualitative measures without specifying what they entail.
We see that positive measures such as accelerated employment equity programs are essential to groups that are grossly underrepresented in certain workplaces. Without this, we see that these underrepresented groups will remain underrepresented.
Also, the employment equity plan must provide for elimination of barriers. What the regulations do not specify is that the measures must be made mandatory. We strongly believe that anti-racism and anti-sexual-harassment policies are fundamental to members of racial minority groups and women and that such policies should be made mandatory in every workplace. There should also be a set time frame for the implementation of these measures.
Regarding accommodation, the act provides that employers shall ensure that accommodations for persons with disability are done in a way that is consistent with the Human Rights Code. I'd like to emphasize that the Ontario Human Rights Code imposes a much higher standard on employers when it comes to accommodation for persons with disability than the employment equity legislation. The code requires employers to accommodate unless they can show that it causes undue hardship to the employers. The employment equity legislation, as it is right now, only requires "reasonable efforts." We recommend that "undue hardship" be set as a standard for accommodation and that this be included in the act and be applied to all designated groups.
Recognizing the importance and relevance of education and information, it is imperative that the role of the Employment Equity Commissioner include the conducting of broad-based public education to clearly spell out the relevant sections of this act.
We also recommend that mandatory education in employment equity be legislated in all the workplaces in Ontario as part of the employer's obligation. The NCCFA, as an advocacy group, strongly recommends that the advisory role of advocacy groups representing the designated individuals and groups and potential third-party complaints of non-compliance be incorporated in the ongoing operations of the Employment Equity Commission and be included in the act.
Also, there should be clear distinctions between the roles of the commission and the OHRC which address systemic discrimination in the workplace.
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The Acting Chair (Mr Alvin Curling): Thank you very much for your presentation. I'm going to use my discretion here with timing now and I ask for the third party to start off.
Mr Tilson: Do I get the Liberals' time, Mr Chairman?
The Acting Chair: I will give you adequate and sufficient time.
Mrs Witmer: Thank you very much, Carmen, for your presentation. I'm sorry I didn't get your last name.
Ms Hernandez: Hernandez.
Mrs Witmer: Thank you. I appreciate the information that you've put forward here. I'd like to deal first with the issue under your positive and qualitative measures. You mention in the last paragraph that you strongly believe that anti-racism and anti-sexual-harassment policies are fundamental. My understanding is that there are policies in place, and I guess I'm asking you what it is that is different that you're asking for.
Ms Hernandez: In order to protect the integrity of strong employment equity legislation, we believe that anti-racism and anti-sexual-harassment policies should be in place. What we see right now and what we have experienced are policies that are just put on the walls, but not implemented at all. But if the anti-harassment and anti-racism policies are incorporated in the act, then there would be a strong mandate for groups like ours to monitor that this is happening at the workplaces.
Mrs Witmer: Okay. I guess my understanding is that those policies are already in place, but you're saying that they're not effective.
Ms Hernandez: A policy that is in place is different from a policy that is part of legislation --
Mrs Witmer: Yes.
Ms Hernandez: -- that is enshrined in the Employment Equity Act.
Mrs Witmer: So you want it enshrined within the --
Ms Hernandez: Yes.
Mrs Witmer: All right. Moving on to the last page, you indicate that the Employment Equity Commission needs to conduct this broad-based public education campaign. How do you propose that be done?
Ms Hernandez: There are a number of advocacy organizations that are also working hand in hand with the Employment Equity Commission. In addition to that, there is also a wide range of individuals who are not part of any organization, which we feel is also a group that should know more about the legislation. We do not want to find our constituency falling into the trap of comments by people who are opposing strong employment equity legislation. We strongly believe that a well-informed constituency is a constituency that will decide fully, well and be able to make decisions and take action later on.
Mrs Witmer: Then you go on to state that mandatory education should be legislated in all workplaces. I guess you're saying it's part of the employer's obligations, so that would be part of that employer's costs to introduce mandatory education.
Ms Hernandez: But that would not cost more than if they're doing the employment equity. If they're implementing the employment equity legislation properly, they will see it only as a matter of consequences to strengthen their employment equity plan. If they do not educate a workforce, then this would cause anti-racism comments and anti-woman comments coming from the workplace.
Mrs Witmer: That's okay, because I know the minister has indicated that this plan will only work if there's education.
Ms Hernandez: What we say is that this will only work if there is education, willingness of the government to push strong employment equity legislation.
Mrs Witmer: So it needs to be mandatory education.
Ms Hernenadez: It has to be, yes.
Mrs Witmer: Right now that's voluntary. It should happen --
Ms Hernandez: Just like the goals and timetables and other positive measures it should be mandatory.
Mrs Witmer: Okay. Now, your final comment here --
The Chair: I'm sorry. I'm assuming there is time enough for several questions. You had one more and Mr Tilson would like to ask -- would you like to leave the time for him to ask it?
Mrs Witmer: Just the last one here: You recommend that the advisory role here be incorporated in the ongoing operations of the Employment Equity Commission. How do you propose that this happen?
Ms Hernandez: Not being a lawyer, I would propose that there could be provisions in the act that would allow advocacy groups to take issues of individuals who have been wronged and also to be able to put forward third-party complaints.
Ms Carter: I guess the general gist of what you're saying is that you like Bill 79 but you want it to be stronger, you want more.
Ms Hernandez: In the absence of any bill, we want this bill to be stronger, because we are calling for strong employment equity legislation.
Mr Curling: In other words, it's a weak bill.
Mr Tilson: A very weak bill.
Ms Carter: Actually, I think there's more there than you give it credit for. You raised the question of subgroups. My understanding is that the bill asks that workplaces reflect the community around them, so I would have thought that was in that way taken care of. I'm just wondering what you would like to see changed to accommodate that question you have about subgroups.
Ms Hernandez: I believe a number of groups have put in their submissions regarding the definition of "subgroups." Coming from the Asian community, I'd like to take that as an example, because not all Asians are alike, not all Asians share the same experiences and not all Asians are equal per se. We wanted to make sure that the sector within the Asian community that is disadvantaged more than some could also be given a level playing field so that their issues could be addressed. Otherwise, if this doesn't happen, the divide and conquer rule is --
Ms Carter: It seems to me that since we're saying that people have to be qualified for the job in any case, the question of who is qualified is a separate issue and has to be addressed in the educational field.
Ms Hernandez: We strongly believe the Employment Equity Act does not say we will get unqualified people. As a matter of fact, advocacy groups like us are asking for standards to be set in the Employment Equity Act. Basically, that is a question.
However, there are biases and stereotypings in the minds of employers and even public officials, that they do not see people as equals but they see different groupings within, say, the Asian community as different. We want this stereotyping to be dismantled.
Ms Carter: I think we're all agreed that no matter what group you belong to you should have equal treatment, and that's what it's all about.
You also don't seem satisfied that there are anti-harassment and anti-discrimination measures in the act, but they are required elements of a plan that an employer would submit.
Ms Hernandez: Let us take the current experience of the Filipino Canadian community, where Canadians of Filipino origins who are teenagers are being banned at a certain mall. We say this banning and harassment is because of their colour. The mall claims that it does have an anti-racism policy. If they do, why is this impacting much more against the Filipino Canadian youth? The question that has to be begged is, unless the policies are enshrined in an act that would also demand that certain sanctions and fines be set against employers who go against it, then nothing will move forward.
Ms Carter: But there are sanctions and fines in the act.
Ms Hernandez: Let's put it this way: It's not that strong. We want it to be strong. We also wanted the opposition to make sure that this legislation is strong.
Mr Curling: Exactly.
Ms Carter: You mentioned the question of education. I think that a large function of the Employment Equity Commission will be to facilitate the carrying out of the act by employers, and there will be a lot of support given as regards education and provision of materials and so on, so I think that objection is largely met.
Ms Hernandez: It is important that it really be an integral component of an act, because from here on we hope that all legislation that affects a lot of people who have socioeconomic development components would include an educational component, because, as I said earlier, it will only protect the integrity of the act and its intentions.
Ms Carter: I think we want the same thing, and the act is working towards it.
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Mr Fletcher: Thank you for your presentation. Basically, I'm coming from a labour background as far as negotiations and contracts are concerned. When I used to go into a negotiation to do collective agreements, I went for what I could possibly get for my constituency, which was my union, and got as much as I could to help the employees. I always knew that next time I could go back and maybe expand on some of the benefits.
A lot of what I'm hearing from a lot of groups so far is the need for education, and I agree; there is a need for education. One of the hardest things to do is to change the mindset of people, especially when people are used to working in an environment or in such a way that they don't mean to be discriminatory but they are. That's part of the systemic part of it.
I'm looking at the long term now when I look at this legislation as a stepping stone, as something to at least put the foot in the door, to start people thinking in the right way, employers and employees, how we can work to get rid of some of the barriers. As this plan gets into place and employers and employees are using it, then we can see where changes have to be made and amendments possibly have to be made in another year, another two years, another three years, but we're on our way to getting to, hopefully, what we can call the perfect society. This kind of discrimination shouldn't be happening, and we shouldn't need this kind of legislation, but we do. That's a high goal to set, and I realize it's a high goal to set, but if we don't have someplace that we want to be, then we'll never strive to get there.
I think a lot of it has to do with, first and foremost, that part of the education is what is in this regulation and how people are going to use it and adapt their workplaces to it. Once they start to use the bill and once we start to knock down the barriers and once we start to understand what is actually happening out there, then we can work even harder, with more confidence that people are going to be on board. To say that this is a panacea, that this piece of legislation will fix all --
Ms Hernandez: Can I respond now? My time's running out. I was afraid you would just --
Mr Fletcher: It's not something we're saying. It's not going to fix the problem tomorrow, but we sure hope it works.
Ms Hernandez: I think what has to be remembered is that even when the bill was put forward, a lot of consultation took place, and it also happened when the other government was in power. What we say is, we don't have to educate people and we don't have to consult again before this can be accepted. What we're trying to say is that statements have already been made as to how to make this stronger, and it should be made stronger. There were deputations made before by the Alliance for Employment Equity, the Coalition of Visible Minority Women, the National Action Committee on the Status of Women and the Disabled People for Employment Equity. We're also coming back again here to ask for stronger legislation, and what we are putting forward are elements that would make this employment equity legislation stronger.
What you said about education we agree with, but we are saying that there is already some education that took place and we just hope people would really internalize it and put it into application, and as we go along getting a stronger Employment Equity Act in place, we also see our role as educating our constituency to support it.
Let us put it this way: The power relationship between business and our constituencies is not the same. Maybe if we called ourselves a consortium of racial minority people, the impact on this committee would be different.
Mr Curling: Ms Hernandez, I've listened to many of your presentations and they've always been very effective, very focused and well researched. As I hear Mr Fletcher trying to justify this weak legislation to you, really what he is saying is that he has not listened.
Ms Hernandez: I want to respond to that too.
Mr Curling: The fact is that many governments have made some attempt.
Mr Fletcher: You didn't have any legislation, Alvin. You were the minister, and you didn't have any legislation when you were in power.
Mr Winninger: Come on. Don't let the facts get in the way.
Mr Curling: Many attempts have been made, and now we have the opportunity to have a bill before us. As a matter of fact, I thought their government had listened before with his leader's private member's bill. We thought he had gotten the message and put a bill out, but we see no sign of that.
What I want to deal with too -- I know you recall Stephen Lewis's report. He spoke about the subgroup here, and you spoke about it. Do you feel it is completely inadequate? Did they make any attempt at all in this one to deal with the subgroups within this? If they haven't, how do you feel they should deal with it?
Ms Hernandez: The issue of subgroups was dealt with when the private member's bill was presented way back in 1989 or so. It was quite unfortunate that the government at the time did not support that particular bill, because we in the community were very supportive of that bill, and that also includes a number of labour people.
The subgroups dilemma should be recognized, because if it's not recognized, that means to say that with the coming forward of various groups, their experiences are not heard by anybody. It's very important that that definition also be included and be defined well.
Mr Curling: Yes, and you're right that when the Liberals, I think you wanted to say, were in power they did not deal with the subgroup.
Ms Hernandez: No, they did not deal with the private member's bill, because we worked very hard for that bill.
Mr Curling: I understand that, and I'm not here to defend my party or defend the government. I'm here to make sure that an employment equity bill is strong enough to bring about justice to all, as it says. Do you see this bill really more or less creating an illusion that change is happening?
Ms Hernandez: What we see is we should be interacting with this bill to make it stronger, bring back the results of the consultation that the government at that time considered from the community and be incorporated in this bill. I'm sure they will all be in the submissions of groups like the Women's Coalition for Employment Equity, the Alliance for Employment Equity, the Coalition of Visible Minority Women, NAC, also Disabled People for Employment Equity, also including, I'm sure, the deputation from native communities. If all this is integrated and incorporated, then this will be very strong employment equity legislation.
Mr Curling: Do you see any duplication at all with the Employment Equity Act, Bill 79, and the Human Rights Commission?
Ms Hernandez: No, there is a big difference. The Ontario Human Rights Commission is complaint-driven and the employment equity legislation is an applied human rights process.
Mr Curling: Having said all of that, looking at the bill, do you see any -- I don't want you to tell me what the intent is. I know the intent of the Employment Equity Act and I agree with you, but do you see any duplication here?
Ms Hernandez: Because of the demands from the community on what we want in employment equity legislation, I do not see any duplication. What is very important is that we go back to our call for a clearer definition of terms, for timetables and goals, for time frames. If it is not clear, they might be one and the same 10 years from now if the mandate is not very clear.
Mr Curling: My last question; I know you are anxious, Mr Chair. The Cornish report talks about the changes and the reforms to the Human Rights Commission. Should the government take this under consideration? Also, while I'm asking you that, if the Access to Trades and Professions in Ontario recommendations are being looked at seriously and being implemented, do you think it would have a great impact on this employment equity --
Ms Hernandez: Let's put it this way. If we have a strong Employment Equity Act, then the work of Access to Trades and Professions will take just a normal course, a natural course, and it will complement the Employment Equity Act legislation.
The Chair: Ms Hernandez, thank you very much for coming and participating in these discussions.
Ms Hernandez: Thank you.
The Chair: If there are no other matters of a public nature, I would like us to recess for two moments while the room clears and we can then deal with a private matter.
The committee adjourned at 1629.