EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
CONTENTS
Monday 6 December 1993
Employment Equity Act, 1993, Bill 79, Ms Ziemba / Loi de 1993 sur l'équité en matière d'emploi, projet de loi 79, Mme Ziemba
Committee business
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
*Akande, Zanana L. (St Andrew-St Patrick ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
Duignan, Noel (Halton North/-Nord ND)
*Harnick, Charles (Willowdale PC)
*Malkowski, Gary (York East/-Est ND)
*Mills, Gordon (Durham East/-Est ND)
*Murphy, Tim (St George-St David L)
Tilson, David (Dufferin-Peel PC)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Carter, Jenny (Peterborough ND) for Ms Harrington
Fletcher, Derek (Guelph ND) for Mr Duignan
Also taking part / Autres participants et participantes:
Ministry of Citizenship:
Fletcher, Derek, parliamentary assistant to the minister
Alboim, Naomi, deputy minister
Beall, Kathleen, counsel, employment equity legislation and regulations unit
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Joyal, Lisa, legislative counsel
The committee met at 1542 in room 228.
EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI
Consideration of Bill 79, An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women / Projet de loi 79, Loi prévoyant l'équité en matière d'emploi pour les autochtones, les personnes handicapées, les membres des minorités raciales et les femmes.
The Chair (Mr Rosario Marchese): I'd like to call the meeting to order and would make two comments, one to facilitate the meeting and the second, as well, in terms of what we do after this.
The first point I want to make is to remind people that at 5 o'clock today those amendments which have not yet been moved shall be deemed to have been moved. So as a reminder, we will proceed at 5. Whatever is left undone, we will proceed to vote on those matters.
Mr Charles Harnick (Willowdale): Is that called "closure"?
Mr Derek Fletcher (Guelph): No. Time allocation.
Mr Harnick: I'm sorry, I'm corrected. Is that called "time allocation"?
Mr Gordon Mills (Durham East): Whatever you think.
Mr Harnick: May I have an answer?
The Chair: I think you know the answer, Mr Harnick.
That was the first point. The second point is, once we have done this matter, what I would like to propose is that the whole committee needs to discuss what we do following this in terms of other matters that have yet to be dealt with. The subcommittee has already met on this. We have not come to a consensus on this matter, so I would propose, as soon as we finish this, that the committee deal with other items to be dealt with in the intersession.
Mr Fletcher had finished introducing the motion, subsection 50(1), and we were ready to get into the discussion.
Mr Harnick: Very briefly, the concern I have is probably what people will say is obvious, but the elements that make up this regulating power that the Lieutenant Governor in Council now will have are very broad. Without going through them section by section, because I know the importance of being finished by 5 o'clock is there, it seems to me that a great many of these items should properly be contained in the legislation, as opposed to being given over to regulatory powers. I have some concern about that.
I have some concern about "setting out and governing circumstances in which any of an employer's obligations under part III change or cease," and various other issues, such as "designating classes of employers in the broader public sector," governing certificates, governing consultation by employers and employees. My concern is, quite obviously, that a great deal of what is being left to the regulations should be matters that come back to the Legislature for amendment.
I don't think, quite frankly, that since I've been here we've had a bill that has a regulation-making section anywhere comparable to this. I'm frightened that so much is being taken away from the Legislature and being put into the hands of the executive council, which ultimately makes these regulations. I think some of what is here should very properly be contained within the act and, if it needs to be amended, brought back to the Legislature.
I don't think that we, as members of this committee and as members of the Legislature, should be setting a precedent where so much of this regulating power is taken away from members of the Legislature. If some of these fundamental changes are going to be made, they should be brought back to the Legislature and the individual members should have the opportunity to debate them, rather than so much of this material being taken out of our hands. I think that's a very dangerous precedent.
I've not seen a bill that has such wide and specific regulating power. I think it's a very dangerous precedent. I think that members on the government side should be very leery about jumping into this. I know that they have their marching orders, but as individual members of the Legislature representing constituencies of people, we should be very leery when powers that should be within our hands and decision-making processes that we should have are being taken away from us.
I would urge the members who are present in this committee, particularly the government members, to be very vigilant and very concerned about what it is that they're giving up, because there's a greater principle here than just what this bill says. The principle is what individual members of this Legislature are giving up to the executive council, without having any opportunity to put on the record what their constituents may or may not feel about an individual issue.
I would urge members of the government to look very carefully at the powers that in effect are being taken away from them, the power to speak on behalf of their constituents when making these changes pursuant to regulations, which we as legislators will never know about until after it's already done. So I think it's very important that members of the government appreciate that they're giving up rights on behalf of their constituents to ever speak about these matters again, and I think that's a dangerous precedent.
Those are my comments.
Mr Alvin Curling (Scarborough North): I also would like to express my concern, as my colleague from the Conservative Party has done.
First, I know that on the government side there's all joy to know that we've reached section 50. I'm disappointed that we've reached section 50 in this haste, this push, and then to tell us too that if we don't complete by 5 o'clock, as it is ruled by the House, meaning by the government side, that it will be deemed to have been moved.
The deeming of things is the thing that frightens me, because all along through this legislation, especially in section 50, we knew when we arrived here it would tell us that all the answers that you didn't give, wouldn't give, that would be in regulations -- when we asked the government side, "When will these regulations be ready?" he had told me explicitly that by October this regulation would be ready. When we asked after October, I got this type of dance that is a draft regulation, and in the final process it's not ready.
I pointed out time and time again the inadequacy of the legislation, that it had many holes, and we were assured that the regulations would fill those holes and they would be ready. The problem is now that neither the regulations are ready -- and maybe I should ask, seeing that things may have been developed over the weekend. So I'm going to ask the question and continue my comment on this. Could I ask the parliamentary assistant, are these regulations ready?
Mr Fletcher: You have a copy of the draft regulations which have gone out. The end of October was the end of the consultation process so that the legislation could be amended, not the end of the process for the regulations to be ready. The regulations will be ready for the legislation. This is not the first time --
Mr Curling: So it's not ready.
Mr Fletcher: This is not the first time.
Mr Curling: I didn't need a speech from him, Mr Chair. I asked if they're ready.
Mr Fletcher: Excuse me, I'm responding. Mr Chair, I think I have the floor.
The Chair: I'll give him the floor, Mr Curling.
Mr Fletcher: This is not the first time that legislation has been passed and the regulations made to fit the legislation. You've done it as a government; the Conservatives did it as a government. It's a standard process.
Mr Curling: You would be different, you said. So from that rambling answer, I gather that he hasn't got the regulations finalized. They are in draft status. We see again that the legislation is inadequate, the regulations are not ready, and also the gun is being put to our heads that by 5 o'clock, whether you have the regulations or not to this most important piece of legislation, it will be deemed done.
However, I just want to say too that many of the parts that were not answered before which are being stated in section 50 --
Interjections.
Mr Curling: I just want to get the attention of the parliamentary assistant. I think that's one of the problems we may have here, that we had hoped that some of the comments we made here as the opposition would be taken seriously, because all of us in this committee would like to have good employment equity legislation, and somehow listening is one of the most important parts of it. We're being denied consultation, which is a part of it that we have asked for and many people have asked for, and we are saying, "If they had just listened a bit more."
What I'm asking the government side to do for this last thrust, this couple of hours, this hour and a half or an hour's time, when it will be deemed to be done without being done, that we will then say, just almost like some part of this thing here in seniority, to consider it not as an impediment to employment equity. We must consider this done, although it's not done.
To say then in this section 50 that we're going to give the powers to the Lieutenant Governor -- let's not be fooled about that; nobody's giving the Lieutenant Governor any powers. It is being given to a bunch of people in the cabinet who will sit there and say, "We will have the power to determine, for instance, the construction industry and how it will be managed under employment equity."
We are saying that this is such an important piece of legislation that most of this should not be left to those people who are locked up in that room called the cabinet for each day with the whim and fancy to change as they like. It should be in legislation, where people have drafted laws that are by the people and for the people, and not for a bunch of people in the cabinet who will determine today if they want to extend or take away the powers accordingly.
We hope that the other aspect of the draft -- maybe I should ask a question here then, since they are draft regulations, whether or not we could deal with the regulations in --
Interjection.
The Chair: Mr Fletcher, he's about to ask a question.
Mr Fletcher: I'm sorry, I was asking for some advice.
Mr Curling: He's in a policy by himself, actually, because he keeps on saying it every time we try to put a question. Would you like to answer the question now, then?
Mr Fletcher: Okay. I was just wondering if we could ask legislative counsel about the regulation-making process.
Mr Curling: Before you answer the question, I didn't ask it yet. I'm trying to get you to listen. I haven't asked a question yet.
Mr Fletcher: Oh, I'm sorry.
The Chair: Mr Curling, please ask the question.
Mr Curling: Good. You see, he was about to answer the question without it even being asked.
The Chair: You've asked him two questions already.
Mr Curling: I want to see if, seeing that the draft regulation is not completed and seeing that the legislation is incomplete and seeing the fact that at 5 o'clock, within 60 minutes, you must deem everything done, I just wondered if we could take that moment then to debate and amend the draft regulations and set the regulations.
Mr Fletcher: No, we can't, but I will ask legislative counsel if she would clarify for us the regulation-making process as far as legislation and regulations are concerned. Do not regulations come after the legislation?
Ms Lisa Joyal: Regulations can't be passed unless there's a valid piece of legislation in place.
Mr Fletcher: Thank you.
Mr Curling: We're going to deem this done. We can deem a valid piece of legislation; that's the point.
Mr Fletcher: But we haven't.
Mr Curling: If all this is going to be deemed done, and I can ask the legal advice here, would that be considered a valid piece of legislation?
Ms Kathleen Beall: What legislative counsel was explaining was that in order to enact regulations, you need to have a piece of legislation giving you the authority to enact regulations. The legislation has that authority when it has been passed by the Legislature of this province.
Mr Fletcher: Third reading.
Mr Curling: So the legislation, having passed then, will be considered good legislation. Is that it? There's no more debate on it after that; it will be deemed done at 5 o'clock.
The Chair: Almost finished.
Mr Curling: How do you know I'm almost finished? I want some answers.
Ms Beall: As you know, there are several steps to the passing of legislation. Following this committee, there would still have to be third reading and proclamation of the legislation in order for it to have full effect.
Mr Curling: But there are no more opportunities for us to amend this after the gun is put to our head at 5 o'clock and it is deemed done. I mean, we can play with words any way around here; you can call it closure or anything. But the fact is you are saying that we will never have the opportunity to debate the regulations because the legislation will be completed by 5 o'clock -- not quite by 5 o'clock, but the fact is that at 5 we cannot talk about it any more. We have to wait until it goes through to third reading for it to be, not proclaimed -- may I ask this question then: When do you see this being proclaimed?
Mr Fletcher: As soon as we get past third reading.
Interjection.
Mr Fletcher: Let's hope so. You have to go past third reading before you can proclaim it.
Mr Curling: As I understand it, on Thursday we will have third reading. That's it, kaput, over. Proclamation is immediately after that?
Mr Fletcher: You have to go through third reading before you can have proclamation.
Mr Curling: Just as I said, that is Thursday.
Mr Fletcher: I don't know. It's not up to me. The minister will proclaim it.
Mr Tim Murphy (St George-St David): So you don't know when you're going to proclaim it.
Mr Fletcher: That will be up to the minister, but you have to have third reading before it can be proclaimed. You know that, Mr Curling. You've been here long enough.
Mr Curling: In other words, as soon as you have third reading, on that day we have proclamation.
Mr Fletcher: I don't know.
Mr Curling: You're carrying the bill. They've sent you here.
Mr Fletcher: But I'm not the one who's going to be proclaiming it.
Mr Curling: Those are my comments so far.
Mr Harnick: May I ask the minister's representative, leading from what Mr Curling said, we'd all be interested, do you know when this bill will be in force? What is the targeted date that the ministry has for this bill to be law and up and running?
Ms Naomi Alboim: Are you going to me?
Mr Harnick: Yes.
Ms Alboim: There is no definitive date at this point in time for proclamation. The minister feels that, given that the clock starts ticking upon date of proclamation, we want to make sure that the supports are in place to assist employers in the development of their implementation of employment equity. When the government feels satisfied that everything is in place, it will determine the proclamation date. It will be in early 1994.
Mr Harnick: We're talking a matter of a month or two, as opposed to, say, June 1994.
Ms Alboim: I can't give you a specific time frame. It will be in early 1994.
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Mr Harnick: That's my first question. Again, from what Mr Curling was asking, in subsection 50(1) of the bill we have a very wide and sweeping regulatory power being given -- you can tell me if I'm wrong about this -- but my understanding is that the final regulations are not yet drafted but are probably in the course of being drafted. We also, contemporaneous with that drafting of the final regulations, received subsection 50(1) with what I can count as being 18 new provisions in terms of expanding the scope of the regulation-making power.
Without going through each of them, am I wrong in assuming that the regulations that are now being drafted are such as to prescribe and define and designate and exclude and set out all of the items that are permitted under subsection 50(1)?
Ms Alboim: If you are asking whether there is work in progress on every single one of these regulation-making authorities, the answer is no. There are some areas that are required by the workplace parties immediately upon proclamation to get work going, and those are the areas that have been concentrated on. There are other regulation-making authorities that are not necessary immediately and may not be necessary in the short term at all until we have further experience with the legislation. So there are some areas of these regulation-making authorities that are not being worked on at this point.
Mr Harnick: I just find it curious that suddenly there were 18 new sections. It sort of stands to reason that if 18 new sections are rushed into place, and they seem very specific, I would have assumed that at least a great many out of those 18 now have regulations being drafted pursuant to the new standards that are being set. I gather from what you're saying to me, just so I'm clear, that is the case with a number of them. With a number of them it's not the case, but they're just there in the event they are needed down the road.
Ms Alboim: There are some that are currently in the draft regulations; there are some where work will have to be undertaken so they are ready at the same time as proclamation comes about; and there are some that, you are right, we are not working on now because they may not be necessary at this point in time.
Mr Harnick: Can you highlight for us which ones are presently involved in actively writing regulations pursuant to this regulation-making power? I don't want to put you on the spot, because that's difficult to do, but are there any of these, 1 through 32, that you can recollect have regulations being made pursuant to them at this moment, as we speak?
Ms Alboim: Everything that is in the draft regulation, and that covers a good number of the 32, are currently being worked on, given that we have received comment as a result of the consultations and as a result of some submissions that have been submitted to the ministry and some commentary made during the public hearings that pertain to the regulations.
Mr Harnick: There are 18 new ones. Do you know if any regulations are being written? If you could tell us specifically, if you know.
Ms Alboim: Of the 18, some of them are in fact not new. They are revisions of the ones that were in before, and they are just reworded in some way to provide additional clarity.
Mr Harnick: Are there any regulations that are being written now that are totally new and fresh from the original draft regulations, that you can recollect?
Ms Alboim: No.
The Chair: Any further debate on subsection 50(1)? Seeing none, I think we're ready for the vote. All in favour? Opposed? This motion carries.
Subsection 50(2) is a Liberal motion.
Mr Murphy: We're not moving it.
The Chair: Okay. It's withdrawn, right?
Subsection 50(2), PC motion.
Mr Harnick: I don't even have it in front of me. Do you have it? Thank you.
Mr Murphy: Basically, we'll just vote against it.
Mr Harnick: Yes, I don't think this is really an amendment. It's just a matter of voting against it.
The Chair: You'll simply be voting against it, as I've suggested in the past.
Mr Harnick: Yes. I don't think is a proper amendment anyway, so I withdraw that.
The Chair: Very well. Thank you.
Subsection 50(5), Liberal motion.
Mr Murphy: "The Lieutenant Governor in Council may, by regulation, provide for special measures, funded by tax incentives or other similar methods of public funding, to facilitate the employment of persons who are severely disadvantaged because of their disability."
The purpose of this provision is to pick up on some of what we heard in the public hearings, that certain people, especially and obviously in the severely disabled category, may require a level of assistance that would be very difficult for employers to provide, but that it would, I think, make more sense from a policy level for the public to bear that cost to assist people.
In fact, in my by-election there was a person who ran as an independent who was previously in hospital at public expense for many years and fought the system quite extensively, finally managed to get a method of funding that she could live with and, as a result, got out of hospital and now employs five people. Those are the kinds of things that I think we need to encourage. That is meant to do this.
Now, at some point I read in a clipping that the minister interpreted this provision as allowing people who did not want to employ the disabled to pay a tax instead of employing them. She may have misread it or have been misquoted. I'll assume misquoted, because it's clearly not intended to do that, because I think this group of people would probably not be assisted by an undue hardship test. With that test, I think an employer could say: "This is too much. It is undue hardship for us to spend as much money employing a severely disadvantaged person."
None the less, we should look at the employment of severely disadvantaged people as a social good, and the way to do it is to provide some kind of special measures to be funded out of the public purse as something we can support as a matter of public policy. So that's the purpose of this provision: to give that specific authority.
Mr Fletcher: While the government supports the principles behind Mr Murphy's motion, there are two reasons why it's not necessary. Let me just say that not supporting this motion doesn't mean that the government rejects the ideas of special measures for persons with severe disabilities; it just acknowledges that these matters can be dealt with without expressed authority within this act.
First, we don't really need legislative or regulatory authority to provide the type of public funding that could be contemplated by this motion. If the government wishes to provide funds for employers to assist in the accommodation of persons with severe disabilities, it can do so without any expressed statutory authority within this act.
Also, the Employment Equity Act itself may not be the best venue for the provision of tax incentives such as tax credits. We think that these matters are more appropriately dealt with in legislation which deals directly with taxation and that the development of such measures would have to be done under the authority of those statutes, after consultation with the appropriate parties.
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Mr Curling: One of the problems that we found with employment equity legislation, the plan itself, is that it must have the kind of supported services in order to have access to other people in the workplace.
This new section that we have put forward, subsection 50(5), is saying that to ease that access, without maybe undue burden on the employer, somehow, regardless of what you want to call it, if you want incentives, tax incentives or whatever, government funds be used to assist employers to accommodate individuals who would need that special assistance and who are being disadvantaged by just the environment where that individual will work. What I'm hearing from the parliamentary assistant is that government doesn't feel that it can do this.
Mr Fletcher: That's not what I said.
Mr Curling: If I'm wrong, then later on in your comments you can say that's not what you said. But I still feel that if I'm quoting you wrongly, well, I'm sorry, but then you can correct me later on.
I see this, though, as we talk about it, as identifying barriers. That's what employment equity is about, the systemic barriers and removing them, whether the burden itself will be placed solely on the employer or whether the employer is able to do so, and maybe by some sort of assistance, some of the barriers can be reduced by funding and government assistance in this respect. I would urge other members, especially on the government side, to support that, because then we will have better access, especially for those in the disabled community.
Mr Fletcher: Just in response, the employment issues for persons with severe disabilities --
Mr Curling: I can't hear you.
Mr Fletcher: -- are currently being examined by a committee of Juanita Westmoreland-Traoré and Dr Shirley Van Hoof, who is chair of the Ontario Advisory Council on Disability Issues. The recommendations of this committee may include proposals similar to those contained in Mr Murphy's motion, and the government will give them serious consideration when the committee's work is done.
Mr Gary Malkowski (York East): I would strongly support the motion in principle, but I'd like to ask the deputy minister or the parliamentary assistant, could there still be a guarantee of a level of support services for severely disabled persons if this amendment isn't accepted?
Mr Fletcher: Yes. That's what this committee is doing, is looking into that.
Mr Malkowski: I was asking the deputy minister.
Mr Fletcher: Okay. I thought you said, "or parliamentary assistant."
Mr Malkowski: The lawyer or the deputy minister.
Ms Alboim: There is nothing in this amendment that requires or guarantees the provision of incentives or public funds. The government would determine, with or without this amendment, what level of support or assistance it wishes to provide to encourage employers to hire people with severe disabilities.
As the parliamentary assistant indicated, the committee that is working under the co-chairmanship of Juanita Westmoreland-Traoré and Shirley Van Hoof is looking at precisely this, along with a number of other things, about how to ensure that people with severe disabilities do benefit from employment equity. I would expect some recommendations to come from that committee. I would expect other recommendations to be put forward to government, and government can then determine what action it wishes to take. The absence or existence of this amendment would make no difference in that regard.
Mr Malkowski: Just as a follow-up, did you say that under employment equity there is a guarantee of support services for severely disabled people? Is that what you said?
Ms Alboim: I did not use the word "guarantee," and there is nothing in the legislation and, I must say, nothing with or without this amendment that uses the word "guarantee" that would guarantee support services for people with severe disabilities.
Mr Malkowski: So then you would say that the employment equity legislation does not guarantee support services for severely disabled persons, right?
Mr Murphy: Exactly.
Ms Alboim: Again, it depends what you are calling "support services." If you are talking about positive measures, if you're talking about supportive measures that will benefit people with disabilities, yes, that is certainly required in the legislation. The words "severe disabilities" do not appear in the legislation. We now have regulation-making authority for subgroups and that could be one of the subgroups that is incorporated in the regulations.
Mr Malkowski: Just to follow up again, my understanding then is that from the legislation there is no guarantee of a level of support services for the severely disabled. Am I understanding you correctly?
Ms Alboim: There is a guarantee of accommodation for people with disabilities. There is a guarantee for positive measures for all designated group members. There is a guarantee for supportive measures for all designated groups that might also benefit non-designated groups in the workforce.
The Chair: Further discussion? Seeing none, I'll call the question on section 50(5). All in favour of Mr Murphy's motion? Opposed? That is defeated.
All in favour of section 50, as amended? Opposed? That carries.
What I'd like to propose now in section 51 --
Mr Fletcher: Yes, I'll read it.
I move that section 51 of the bill be struck out and the following substituted:
"51. The Human Rights Code is amended by adding the following sections:
"Components of employment equity plans
"14.1(1) A right under part I is not infringed because positive measures or numerical goals that are contained in an employment equity plan under the Employment Equity Act, 1993 are restricted to members of the designated groups identified under section 4 of that act.
"Definitions
"(2) In this section,
"`numerical goal' means a goal with respect to the composition of an employer's workforce that is determined in accordance with the Employment Equity Act, 1993;
"`positive measure' means a positive measure established under the Employment Equity Act, 1993.
"Undue hardship where employment equity plan exists
"24.1(1) If a complaint is made against an employer that has an employment equity plan under the Employment Equity Act, 1993, the commission, a board of inquiry, or a court may consider the cost of implementing the employment equity plan in any assessment of undue hardship that it makes under subsection 11(2), 17(2) or 24(2) with respect to the complaint.
"(2) Despite subsection (1), the commission, a board of inquiry, or a court shall consider the cost of implementing an employment equity plan in any assessment of undue hardship that it makes under subsection 11(2), 17(2) or 24(2) with respect to the complaint if, on or before the day that the complaint is filed with the commission,
"(a) the Employment Equity Tribunal has determined that the plan complies with part III of the Employment Equity Act, 1993; or
"(b) the Employment Equity Commission has determined that the plan complies with part III of that act.
"Orders re employment equity plans
"41.1(1) Despite any provision of this act, the commission or a board of inquiry shall not, by order, amend an employment equity plan under the Employment Equity Act, 1993.
"Orders where plan exists
"(2) If a board of inquiry finds that a right of a complainant under part I has been infringed by an employer that has an employment equity plan under the Employment Equity Act, 1993, the board may make an order that has the effect of imposing requirements on the employer that are in addition to those contained in the employment equity plan.
"Order not part of plan
"(3) An order under subsection (2) shall not be interpreted as forming part of the employment equity plan."
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A new section 14.1 of the Human Rights Code will be added to provide that rights under part I of the code are not infringed by the implementation of positive measures -- these are measures designed specifically for any or all of the designated groups -- or numerical goals that are restricted to the designated groups. Positive measures and numerical goals will be defined in the regulations.
This amendment will prevent individuals who are not members of the designated groups from launching a complaint on the basis that they have been excluded from a positive measure or a numerical goal. Because positive measures or numerical goals are designed to benefit only the designated groups and are required by the Employment Equity Act, this should not be the subject of complaint under the code.
Both the Human Rights Code and the Canadian Charter of Rights and Freedoms permit special programs which are designed to alleviate hardship faced by a protected group. This amendment clarifies that the existence of such programs is permitted by law and does not violate the principles of either the code or the charter. The amendment provides certainty to employers with respect to the legal status of their positive measures and numerical goals and prevents the delays and expenses which could result from unnecessary litigation challenging such measures.
This amendment does not prevent non-designated groups from launching discrimination complaints with the commission as long as those complaints are not related to a positive measure or a numerical goal.
Again, this amendment replaces the protection that had been provided by the addition of subsection 14(6) of the code. That subsection deemed employment equity plans to be special programs for the purposes of section 14 of the code if the requirements of section 51 had been met. This subsection has been replaced because the protection it provided was considered too broad for employment equity purposes and may have prevented a person who had been discriminated against from obtaining a remedy.
At the present time, employers who are subject to a discrimination complaint that relates to section 11, section 17 or section 24 are entitled to rely upon the undue hardship defence. The undue hardship defence allows an employer to demonstrate why the interests of a group or individual who has been discriminated against could not be accommodated. The assessment of undue hardship includes three criteria: cost, outside sources of funding, and health and safety requirements.
Because all human rights complaints will now continue to be processed under the Human Rights Code, this amendment provides for the inclusion of the costs of implementing an employer's obligations under the Employment Equity Act and the undue hardship analysis.
Subsection 24(2) specifically requires the commission, a board of inquiry or a court to consider such costs if the Employment Equity Tribunal of the Employment Equity Commission has previously determined that the employment equity plan complies with part III of the Employment Equity Act. In circumstances where the previous determination has not been made, the commission or board of inquiry or the court will determine whether such costs should be considered.
Section 41 of the code sets out the order powers of a board of inquiry established under the code. In general, the board can order a party to do anything necessary to achieve compliance with the code. Because these powers are extremely broad, section 41.1 has been added to specify that a board of inquiry cannot order an amendment to an employment equity plan. This ensures that the implementation of the contents of an employment equity plan that has been developed by the workplace parties will not be interfered with by the board of inquiry.
This section does not prevent the board of inquiry from making any order that imposes requirements in addition to those set out in an employment equity plan in order to remedy the human rights complaint.
This amendment addresses concerns raised by many presenters, particularly those from designated groups, to the standing committee. We think it strikes a balance between their concerns and the concerns of employers that the orderly implementation of employment equity not be interfered with by individual human rights complaints.
Mr Murphy: Can I ask why positive measures were identified but not supportive measures?
Ms Beall: Positive measures are measures which are designed specifically to benefit the members of the designated groups. Supportive measures are measures which are designed to benefit the members of the designated groups but also may benefit other members of the workforce. As such, then, they should have the opportunity to assist, and therefore all members of the workforce should have the opportunity to benefit from supportive measures, as opposed to positive measures, which are specifically for the members of the designated services.
Mr Murphy: Supportive measures may have the indirect impact of assisting non-designated group members, but may not have that impact as well. Am I right?
Ms Beall: Of course, it would depend on the specific circumstances of each individual. For example, a day care centre would be a supportive measure, but a person who has no children wouldn't necessarily benefit from the day care centre, because he didn't have any children to put into the day care centre.
Mr Murphy: This provides a protection for positive measures that you're not providing to supportive measures. Well, you've time-allocated it; it's your bill. Good luck.
Mr Malkowski: May I ask a legal opinion here? Let's say we have a situation where an employer has a plan under employment equity and is obligated to provide accommodation. If the employer does not follow that, what happens then? Does one go to the Employment Equity Tribunal, legally, or does one go to the Human Rights Code to get redress? Where do they go?
Ms Beall: If the employer has provided under the employment equity plan an accommodation and then fails to provide that, then there are two things that can come out of that. One is, if the employer has failed to implement its plan, if its plan says it's going to do something and it fails to do it, individuals can take an employer to the Employment Equity Tribunal.
Also, the individual who has been denied accommodation by the employer, regardless of whether or not it's in the employment equity plan, still has his remedy under the Human Rights Code to go to the Human Rights Commission and file a complaint with the Human Rights Commission that the employer has failed to provide him the accommodation which he has the right to have under the Human Rights Code.
Mr Malkowski: Okay. For a supplementary then, on my first point I just want to talk about the second part of your answer. Under employment equity, at the tribunal, suppose it gets referred back to the Human Rights Commission. Will the tribunal actually deal with it under its board of inquiry? What takes place there?
Ms Beall: I'm sorry, I'm confused about the idea of referring something back to the board of inquiry. Who is referring something to the board of inquiry?
Mr Malkowski: Under the Employment Equity Tribunal, suppose a decision is then to refer them back to the Human Rights Commission, under the code. Could they do that? Or suppose an employer fails to follow their own employment equity plan, and the tribunal then says: "Oh well, no, we're not going to deal with this. We'll send it back to the Human Rights Commission." Do you foresee that kind of thing happening?
Ms Beall: There's no provision in the legislation for the tribunal sending issues to the Human Rights Commission. That kind of moving of complaints back and forth between the Human Rights Commission and the Employment Equity Tribunal had been set out in the old section 51 of this bill, but that section would be replaced entirely by this new section where human rights complaints are dealt with by the Human Rights Commission, regardless of whether or not there's an employment equity plan.
Employment equity plan complaints are dealt with through the Employment Equity Tribunal, and it's not a question of sending one back and forth between the two. An individual who's been denied his right to accommodation under the Human Rights Code would still have the full access to the Human Rights Commission with respect to that failure.
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Mr Malkowski: So -- I'm just thinking here -- that means that the tribunal could then decide to send them off to the Human Rights Commission without having to actually deal with it. Is that what you're saying?
Ms Beall: No. What I'm saying is that the individual, in addition to taking the employer to the Employment Equity Tribunal for failing to implement their plan -- and that is one issue of, "Has the employer properly implemented what they have set out to do in their plan?" In addition to the question of the plan and its implementation, the individual still has his individual remedy with respect to his failing to receive the accommodation which he is entitled to under the Human Rights Code, and the individual can go to the Human Rights Commission for his individual complaint.
Mr Malkowski: Great. Thank you.
The Chair: Any further discussion? We're ready for the vote. All in favour of section 51? Opposed? That carries.
Now a question to all of you. We can do sections 52, 53 and 54 all at once, or if you'd like, we can do them separately.
Mr Murphy: Are these the proclamation, title and --
The Chair: That's right.
Mr Murphy: All at once is fine.
The Chair: One of them is the title, but just a short form. Would you like to just look at that? Do you have it?
Mr Murphy: That's fine. We'll do them all at once.
Mr Harnick: Yes, go ahead.
The Chair: All in favour of sections 52, 53 and 54? Opposed? That carries.
Shall the title carry? All in favour? Opposed? That carries.
Shall the bill, as amended --
Mr Malkowski: May I have a recorded vote?
The Chair: On shall the title carry?
Mr Malkowski: Yes, I'd like a recorded vote.
The Chair: Shall the title carry, on a recorded vote? Those who are in favour?
Ayes
Akande, Carter, Fletcher, Malkowski, Mills, Winninger.
The Chair: Opposed?
Nays
Curling, Harnick, Murphy.
The Chair: That carries.
Shall the bill, as amended carry? That carries.
And the last matter to read out: Ordered that the Chair report Bill 79, An Act to provide for Employment Equity for Aboriginal People, People with Disabilities, Members of Racial Minorities and Women / Projet de loi 79, Loi prévoyant l'équité en matière d'emploi pour les autochtones, les personnes handicapées, les membres des minorités raciales et les femmes, as amended, to the House.
So we're done; we're done on this matter.
Mr Fletcher: I'd just like to thank the members of the committee for their indulgence and for their input into this legislation. We realize that things didn't run as smoothly as we'd like them to sometimes. Again, I'd just like to thank the members of the committee for their hard work.
Mr Murphy: I actually wanted to put in my thank you to the staff for attending here and having to work through some difficult times and various iterations, as the word is used, of this bill.
I just want it noted for the record that the government's time allocation motion was completely unjustified, given that we finished ahead of it. Therefore, it was entirely and completely unjustified.
Mr Malkowski: For the record, I also would like to thank the people of the committee and those from the Ministry of Citizenship, the deputy minister and all the staff who worked very hard to help those people in society whom this legislation's going to go a long way towards helping, and to thank all the members who were supportive of this legislation. This is progressive legislation. I want to thank the opposition members, that in spite of the opposition to this legislation, we're going to get this done.
The Chair: I thank everybody who's been involved.
COMMITTEE BUSINESS
The Chair: We are now going to deal with another matter that may not concern many of you who are present.
Interjections.
The Chair: Can I just ask, those of you who are not interested in the committee work, that perhaps you step outside to say whatever you say to each other.
As I said earlier, we have not had consensus in our subcommittees with respect to what we are going to do in the intersession. Therefore, given the way of the time, I think this is the best thing for this committee to do.
You have in front of you a whole list of things that this committee can be doing, and it's up to the committee to propose what we are to do next in the remaining time that we have in this session and what we will do in the intersession.
I leave the floor open to the members.
Mr Harnick: In light of the fact that we haven't been able to make a decision, it's my suggestion that we go in the order of the bills that have been referred to this committee.
We have Mr Tilson's Bill 3, which was referred April 29, 1993; it'll be a year by the time the intersession is complete. Mr Runciman has made representations to the subcommittee directly about his bill -- that is June 3, 1993 -- and thereafter you have Mr Murphy's bill and my own bill. In light of the fact that we've been unable to come to any conclusion, it's my suggestion that we go in the order of the bills being referred to this committee.
Mr Murphy: When we started briefly to discuss this the other day, I had said that I was quite pleased to have public hearings on my bill. My concern was that I didn't want to have the many interested parties that are likely to be here -- I gather there are about 90 on the list now, and I'm sure that is growing apace and will continue to grow as soon as people are aware that it's going to hearings.
My concern was that the Attorney General, the day after I introduced this bill, promised to introduce her own bill, a government bill covering this and other areas related to spousal rights for benefits. We are now seven days or so away from the end of the session, and no bill. I had a discussion with the Attorney General -- I believe the parliamentary assistant was there -- in which she indicated there would be no bill this fall, despite her promise to do so. That concerns me.
What I did want to know, however, was whether there was an intention on the part of the government to introduce its own bill in the spring. I know that there is essentially draft legislation in the Attorney General's office, in any event, which is not coming forward.
I didn't see that it would be very useful to go through the process of having hearings on my bill when the intention was to immediately thereafter introduce a bill and have those same hearings again, probably to the same effect and same purpose. I thought that was unfair to all presenters and also unfair to the community for which I introduced this bill, because it delayed it much longer than it otherwise would have been; it required many people to go through that process.
I have not had an indication from the Attorney General. I'd asked for written confirmation that there would be no bill this fall and possibly even no bill next spring. I didn't get any such kind of commitment. I got -- well, I'm not sure I can think of a polite way to describe it, so I won't.
In essence, my concern is to put people through. What I want to hear from the parliamentary assistant is some clear, concise, straightforward indication of the planning of what's going on in relation to providing equal benefits to same-sex couples. Based upon what I hear, we can make a decision from there.
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Mr David Winninger (London South): I'd just like to make a contribution to this discussion too, and perhaps even make a motion when the appropriate time arrives.
First of all, we've been wanting to complete Mr Jackson's standing order 125 matter, victims of crime report. I suggest, since we only have a few business days left on this committee prior to the Christmas break, that we finalize that report -- I think we've done about nine hours and we have three hours left, if we need it, to deal with the writing of that report -- and that we ask the House leaders to agree to set time aside in the month of January, and February if we need it, say four weeks, to deal with Bill 45, Mr Murphy's bill. I think within four weeks we could have hearings and do clause-by-clause. That's what my thinking in this matter is.
The Chair: Okay. Mr Murphy also asked you a question. I'm not sure whether you wanted to add anything to his question.
Mr Winninger: I was present when Mr Murphy had extensive discussions with the Attorney General herself, and I don't think we need to go into that yet again. It's not a question that I need to answer today. We've indicated our position several times to Mr Murphy, that we think his bill will provide a golden opportunity to hear public deputations on the bill. That's why I'm sure he is anxious, as I am, to see the bill go ahead as expeditiously as possible.
Mr Murphy: Yet again on this issue, another unsatisfactory response from the government, which has spoken, frankly, out of both sides of their mouth on this issue, promising a lot and delivering nothing time and time again.
Mr Winninger: Liberals know a lot about that.
Mr Murphy: Well, I put mine on the record. Where's yours, David? Where's Marion's?
The Chair has a riding which, I'm sure, has quite an interest in this, and I haven't seen his private member's bill. So where is it? I've introduced it, and it's only because I've introduced it that you even have an opportunity to discuss this issue. So that answer is completely unsatisfactory, as usual.
I went through a campaign, as did your party's candidate and the Conservative Party, in which anger was the primary response of people in the gay and lesbian community to the inaction on this issue. This is nothing but worsening the cynicism to do what you're proposing to do, which is to go through public hearings on this bill with no intention of doing anything with it, with no indication of any intention of what you're going to do.
Mr Mills, for example, lives in my riding at 100 Wellesley --
Mr Winninger: On a point of order, Mr Chair: I think Mr Murphy well knows that we specifically requested the Ontario Law Reform Commission to do some work and to make some recommendations.
Mr Murphy: That is just irrelevant and hardly a point of order.
Mr Winninger: So to suggest that we haven't done anything is quite clearly inaccurate.
Mr Murphy: It's a new definition of "action" to say that another study is action.
I'm sure that Mr Mills, as I was saying, who lives in my riding, is quite aware of the anger and cynicism that this government's actions are creating, continually to promise and not deliver. It's fine; if you're not going to do it, say you're not going to do it, and we can at least pass this and get something done. But you can't continue to speak out of both sides of your mouth until you're going to just completely alienate everybody.
And that's not a partisan comment. That's about the institution of this Legislature, about the institution of politics. This kind of behaviour will just continue to bring us all into disrepute, and no one is going to have any faith in any political institution.
Mr Winninger: What's the matter with your bill?
Mr Murphy: Everything. I asked you the day it was debated at second reading -- and Mr Marchese was there and he will recall. I said: "Pass it right now. Go to third reading right now if you want action." Well, here we are now. I was prepared to call it at any time, but I wanted an indication from your government what it's going to do.
You said, right after I introduced it: "Oh, no. Don't worry. We have your best interests at heart." Well, so much for the promise of action this fall; we have seen nothing. A report on family law and property law by the law reform commission is not action. This is cynical, political, manipulative action of the worst kind.
Mr Harnick: Could I suggest that we defer doing anything until tomorrow and that the parliamentary assistant go back to the minister and ask the minister specifically to give Mr Murphy an answer. That seems very reasonable.
I would think that with the law reform commission's report now being published and out in the public, it's very easy for the minister to say, "Yes, I will be bringing in legislation this spring," in which case Mr Murphy will know what to do with the bill that's presently before us, or "No, I will not be bringing in legislation this spring;" so therefore Mr Murphy can continue.
But there's no point duplicating and using Mr Murphy's bill as a guinea pig, because that's all you want to do. You're just using his bill to take the heat off you as a government. The least you could do is ask Marion Boyd for a direct answer to his question. I don't think that's unreasonable.
I move that we adjourn for the day, pending an answer through the parliamentary assistant or by Marion Boyd coming here directly to provide an answer to a very specific question: Are you bringing in your piece of legislation this spring or aren't you?
The Chair: Rather than having a debate on this, can we just vote on this motion? All in favour of adjournment? Opposed? Okay, that motion's defeated.
Mr Winninger, I have you on the list, but what I'd like to say is two things: first --
Mr Harnick: Well, I'm leaving.
The Chair: Just one second. Tomorrow, this committee has been designated as the committee to deal with the issue of the teachers' pensions. So that day is committed to that issue.
We're not certain whether we'll be sitting the week of the 13th, so that is why we're dealing with this matter now. We have met before as a subcommittee. We've not been able to conclude anything.
I would add further that in the intersession, we have time to deal with several issues if this committee requests. So if the committee requests that we have six weeks or seven weeks or whatever time it feels that it needs to ask of the House, it can do so.
Mr Murphy: On a point of order, Mr Chair: In the absence of any indication, I'm not participating.
The Chair: That's not a point of order, but thank you for that remark.
Mr Winninger: I was going to say, before Mr Murphy walks out of the door, that he has heard the Attorney General's answer on this. I was present; I witnessed it.
I would move that you, as the Chair of the committee, ask the House leaders -- is there a formal motion that would be in order?
The Chair: You could move that motion.
Mr Mills: My big problem in Murphy's ward is that the elevators don't work in the building, not that the legislation's not coming forward.
Mr Winninger: I've rethought the language I'm going to use on this motion. I think a slightly more general approach would be in order. This is the motion.
The Chair: That is an addition to a motion that I think you wanted to make, Mr Winninger.
Mr Winninger: I see, okay. First of all, I move that the Chair of this committee request the House leaders to set aside time in January and February of approximately four weeks to deal with public submissions and clause-by-clause of Bill 45.
Then there's a more general part to that motion as well, that for the purpose of committee hearings over the winter recess, the Chair, in consultation with the subcommittee and full standing committee, time permitting, and in the case of a private member's bill, in consultation with the sponsor of the bill, shall have the authority to make all arrangements necessary for the orderly consideration of all matters referred to the committee.
The Chair: Just a question: Did you give the number of the bill that you want to be dealt with?
Mr Winninger: Bill 45 is the number that I'd like to see dealt with. In the interim, if Mr Jackson wishes to proceed to complete the report on victims' rights, I would suggest that would be a good use of our time.
The Chair: Are there other issues you want to deal with after we deal with Bill 45?
Mr Winninger: I defer to my colleagues. They may have things that they wish to put forward as well.
The Chair: If you look at the number of bills that have to be dealt with, you may think of whatever appropriate time you think is necessary to deal with some other matters that we have to deal with. If so, we need time from the House leaders.
Mr Winninger: We heard earlier that Mr Harnick was suggesting that Mr Tilson's bill proceed. I believe that was the Teranet bill, which would be Bill 3.
The Chair: That's right.
Mr Fletcher: Is this a motion?
Mr Winninger: We've already adopted -- we haven't adopted but I've suggested a general motion that would deal with House business.
The Chair: My only point is that if we're devoting four weeks to Bill 45, it will not leave any other time in the intersession to deal with other matters, and your motion only says four weeks set aside for Bill 45.
Mr Winninger: I think the motion that I've suggested gives you considerable latitude in setting the required time for this committee's business.
The Chair: That authority would only allow us to move around those four weeks. The House is the one that gives you authority to sit four, five, six weeks or whatever to deal with all the business. We can make a recommendation to the House leaders, and they will either approve it or come back and say, "I'm sorry, you can only have four weeks" or five, whatever it is. But if we only have four weeks, then we have to deal with Bill 45 --
Mr Winninger: I've just reconsidered yet again, and I think it would be advisable to add an additional week in our request, to deal with miscellaneous matters to be agreed.
The Chair: Very well. Ms Akande, do you want to speak to this?
Ms Zanana L. Akande (St Andrew-St Patrick): I was concerned about what Bill 56 was, An Act to protect the Civil Rights of Persons in Ontario. Was that not the bill Mr Harnick had introduced concerning hate literature or things of that type?
The Chair: I believe that is the one.
Ms Akande: Where in the order of business have we put that? Have we put that after Bill 45?
The Chair: In whatever order this committee deems.
Ms Akande: I would suggest that we deal with that immediately after Bill 45, if in fact we're going to deal with Bill 45. That's all very up in the air at this moment.
The Chair: Ms Akande was proposing that after we deal with Bill 45, in the remaining time we deal with Bill 56, An Act to protect the Civil Rights of Persons in Ontario, as opposed to Bill 3.
Mr Winninger: It just seemed a little odd to me that Mr Harnick would be promoting Bill 3 over his. He wanted to deal with them in order. Maybe Ms Akande wants to make a friendly amendment here.
Ms Akande: We never did vote on Mr Harnick's recommendation, and the reason -- he might have been being gallant, or I don't know what, fear or whatever the problem was, but I don't care. I think the reality of the situation is that hate literature seems to be an issue of some greater importance, as far as I'm concerned, and it would send a good signal to the public and certainly to the Legislature if in fact we dealt with 56 as a statement, at least, from this committee.
The Chair: Can I recommend as a way of avoiding naming of the bill that perhaps in the week that we have remaining, we leave it open for us to decide later on whether we will deal with Bill 3 or Bill 56?
Ms Akande: I'm already making a recommendation that we deal with Bill 56.
The Chair: I know, but Mr Winninger had --
Mr Winninger: I'll defer to my colleague on that other week.
The Chair: All right.
Mr Mills: I'd just like to ask one question --
The Chair: I'm sorry, just to be clear: So you're naming 56 as the other matter to be dealt with.
Mr Winninger: I don't need to name it. If you want it all in one motion --
The Chair: Yes.
Mr Winninger: -- yes, why don't we deal with 56 in that other week.
The Chair: Fine.
Mr Mills: I just wonder, Mr Chair, if there's any sort of precedent set that we follow some sort of order as they appear, as they come before -
The Chair: Not necessarily. My understanding is that the committees decide which private bills to deal with, and that is the option that we exercise as a committee.
Mr Mills: So it would seem that the bill on April 29 doesn't really matter.
The Chair: That's correct.
Okay? Are we ready for the vote? All in favour of Mr Winninger's motion? Mr Winninger, we'll read it to confirm that what you said in fact is what we have written.
Mr Winninger: Okay, thank you.
Clerk of the Committee (Ms Donna Bryce): "That the Chair request the House leaders to set aside four weeks in the January-February recess to deal with public submissions and clause-by-clause on Bill 45, and that one week be also set aside during that time to deal with Bill 56;
"And for the purpose of the committee hearings, over the winter recess the Chair, in consultation with the subcommittee and full standing committee, time permitting, and in the case of private members' bills, in consultation with the sponsor of the bill, shall have the authority to make all arrangements necessary for the orderly consideration of all matters referred to the committee."
Mr Winninger: Yes, that was very elegantly phrased.
The Chair: All in favour? That carries.
This committee is adjourned.
The committee adjourned at 1658.