Legislative Assembly of Ontario

EMPLOYMENT EQUITY ACT, 1993 / LOI DE 1993 SUR L'ÉQUITÉ EN MATIÈRE D'EMPLOI

CONTENTS

Monday 15 November 1993

Employment Equity Act, 1993, Bill 79, Ms Ziemba \ Loi de 1993 sur l'équité en matière d'emploi, projet de loi 79, M^me Ziemba

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE

*Chair / Président: Marchese, Rosario (Fort York ND)

Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)

*Akande, Zanana L. (St Andrew-St Patrick ND)

Chiarelli, Robert (Ottawa West/-Ouest L)

*Curling, Alvin (Scarborough North/-Nord L)

Duignan, Noel (Halton North/-Nord ND)

*Harnick, Charles (Willowdale PC)

*Malkowski, Gary (York East/-Est ND)

*Mills, Gordon (Durham East/-Est ND)

*Murphy, Tim (St George-St David L)

Tilson, David (Dufferin-Peel PC)

*Winninger, David (London South/-Sud ND)

*In attendance / présents

Substitutions present/ Membres remplaçants présents:

Carter, Jenny (Peterborough ND) for Ms Harrington

Fletcher, Derek (Guelph ND) for Mr Duignan

Also taking part / Autres participants et participantes:

Beall, Kathleen, legal counsel, Ministry of Labour

Ministry of Citizenship:

Ziemba, Hon Elaine, minister

Alboim, Naomi, deputy minister

Bromm, Scott, policy analyst

Clerk / Greffière: Bryce, Donna

Staff / Personnel: Joyal, Lisa, legislative counsel

The committee met at 1549 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 call the meeting to order. I'd like to welcome Ms Ziemba for being here. She'll be with us during this clause-by-clause consideration. I would like to propose, before we begin, that we go back to the beginning, as opposed to where we left off at the last meeting. I think that will make it easier. I will tell you where the beginning is.

Mr Alvin Curling (Scarborough North): Before you do that, Mr Chairman, could you tell me what amendments we have? I learned that we had some new amendments that arrived today somewhere about 2:30 or something like that.

The Chair: That's correct. You will see in front of you two packages of new amendments that you should substitute for the old. I think it is obvious to you. If it isn't, we'll simply wait a few moments until that is taken care of and then we'll begin.

Mr Curling: It's not obvious to me because at 2:30 I was in the House and I just heard when I came up that we have some new amendments. I hate to say this, but I don't know if we can do it here. I don't know what the amendments are so that I can sort of correlate them in a way. I really haven't looked at them. I'm asking for your direction on this. How do we deal with these new amendments that we have now?

The Chair: Very simply, we'll ask the clerk to perhaps take us through the steps as we do this so we're all following --

Mr Curling: Could I have some quiet in here?

Mr Charles Harnick (Willowdale): Excuse me.

The Chair: Can we deal with one matter at a time, Mr Harnick? On this matter?

Mr Harnick: Yes, it is on this matter, and this matter also includes why we stopped dealing with this bill about three weeks ago. The reason was that there was going to be a whole slew of amendments. A whole slew of amendments came through in the middle of last week. Now there's a whole slew of amendments that arrive as we start the hearings and you expect us to be able to be conversant with this material when you've just brought it at 2:30 when we're all in the Legislature, listening to the Premier talk about the flaws in this policy, which are identical to the flaws in this bill.

I can't conceive that we're actually going to sit here and do this in the manner that you've decided this is going to take place. It's shocking when you hear the Premier say, and these are the words I wrote down in response to his answer today, "I think people should be able to apply, no matter who they are."

This bill is about everything that deals with who can't apply. The fact of the matter is that the Premier makes that statement and I compare it to this bill, and now you want to me to talk about this bill in light of a whole slew of amendments. We had a meeting of the subcommittee today, for those who don't know. There was not a single mention at the subcommittee meeting at 12:30 that in two hours, when we are all in the Legislature listening to the Premier denounce the policy contained in Bill 79, there was going to be a whole slew of new amendments.

Mr David Winninger (London South): Point of order, Mr Chair.

Mr Harnick: I'm not finished.

The Chair: Mr Winninger, point of order.

Mr Winninger: I can't just sit by and hear Mr Harnick characterize the Premier's response to that question as repudiating what's in Bill 79. He was very specific about dealing with positive measures in the public service, not with Bill 79.

The Chair: That's not a point of order, but thank you for the point.

Mr Harnick: At any rate, we were at a meeting at 12:30 and there was not a single mention about more amendments coming. You knew at the time, you had to know at the time that there were more amendments coming. Why didn't you tell us? Why didn't you at least give the amendments to us at 12:30? We might have had 20 minutes to look at them.

The amendments came along at 2:30. We're all in the Legislature, listening to the discussion about the ad that was placed -- whether that ad is the policy for the public service, I can tell you it sure is the policy that's being reflected in this bill -- and we haven't had so much as a single statement from the minister, we haven't had so much as the courtesy of even being advised there were more amendments coming, and now we're going to sit here and we're going to deal with this material.

I think, quite frankly, that the way this bill has proceeded is absolutely the most incompetent mess that one could ever conceive of. Today in the Legislature, listening to the Premier talk about the policy on this very issue as it deals with public servants, is the icing on the cake. I can't believe that if you're going to reconsider the policy as it pertains to public servants, you're not prepared to go back and reconsider this very policy. I can't conceive that until that's done, we're going to proceed with this. At the very least, give us an hour to look at these amendments, to understand what they are. Give us a briefing about what this package is all about.

You sat there, Mr Chairman, in a meeting with us, knowing damned well that these amendments were coming and you didn't say a single thing about it, not a single, solitary thing, and you knew. I don't know why you couldn't have given us these amendments last week. You had all week to do it. You had nothing else to do. I'm sure this is the only piece of legislation, that I'm aware of, that the minister's shepherding through the Legislature. Surely she could have delivered these to us last week. She must have 1,000 people who work for her. They could have probably delivered every one by hand. Now, here we are, it's almost 4 o'clock and we're about to start talking about amendments that were given to us two minutes ago.

This is a joke on a policy that the government's reconsidering. I can't conceive of it. I can't conceive that we're actually sitting here through this charade. You're going to bang through these amendments anyway, but at least give us the courtesy of having a chance to review them so we can say something about them.

This is unbelievable. This is an affront to every opposition member in this Legislature, and it's a bigger affront when you hear that the government is reconsidering the whole policy, because that's what happened in the Legislature today. You may not want to believe it, but that in fact is what happened in the Legislature today.

When I look at this bill and I look at the numerical goals that are set out, as soon as I see this concept of numerical goals, which are really quotas, and the plan filings that have to be made, I tell you that once those numerical goals go into effect and those plans have to be executed, what you're doing is that you're saying to the public, "Certain members of the public need not apply," because the plan says, "Only these people have openings for jobs, so you need not apply." It's absolutely no different than the policy your own Premier renounced today, and I can't conceive of --

The Chair: Mr Harnick, I think you've made your point very clearly and you're getting into other areas at the moment in terms of process. But you made your point.

Mr Harnick: Let me tell you what I'd like you to do.

The Chair: No, Mr Harnick. I've heard your points. We're going to move on. You'll have another opportunity.

Mr Harnick: With respect, I'm not finished and I would like to at least have the opportunity to finish and tell you the relief that I'm seeking.

The Chair: I thought I'd heard it, but if you want to say it again, that's fine.

Mr Harnick: At the very least, can we adjourn this session so that we can look at these amendments? What I ask you to do is to adjourn this whole episode until the government decides what its policy is really going to be and how exclusionary it's going to be. Look, the intent of this bill and the intent of employment equity is a very good intent, but the way you're doing it in this bill is totally contrary to the policy the Premier talked about today in question period. What I'm asking you to do is to withdraw the whole bill until you get your act together and understand what your policy's going to be.

With respect, number one, I think your policy on the public service side should be consistent with your policy in terms of the private sector. Number two, if you're not prepared to do that, and if you're not prepared to be consistent with what the Premier said today, then at the very least have the courtesy not to dump these amendments on us. Have the courtesy to let us look at them, to discuss them with our research staff and to understand what they mean, so at least we can come here and discuss them.

Don't operate this way. It's absolutely unfair. It shows how incompetent the government really is and it's discourteous to every member who sits in the opposition. You may think this is the way --

The Chair: Mr Harnick.

Mr Harnick: I'm not finished yet.

The Chair: I appreciate what you've said. I've understood what you have said. You propose two things: withdraw the bill or adjourn or recess for an hour to deal with it. We heard that. I'd like to move on to other speakers so we can hear what others have to say on the matter.

Mr Tim Murphy (St George-St David): I have two points. I'd like to ask the clerk, first of all, and I may be wrong, but my understanding is that for amendments to be in order, they need to be filed with the clerk two hours prior to the commencement of the proceeding. I might be incorrect, but my understanding is these were received by you at 2:30, and that as a result of what I believe to be the rule, and you can clarify that if I'm wrong, these amendments would be out of order for today.

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Clerk of the Committee (Ms Donna Bryce): The wording in the standing orders says two hours if possible, so there's nothing to prohibit them from coming at this time.

Mr Harnick: Well, tell us why it wasn't possible, then.

The Chair: She can't tell you that, Mr Harnick.

Mr Murphy: No, and I won't ask the clerk that question. It's not a position to put her in. It is, however, a position to put the minister and the parliamentary assistant in.

My understanding of what we did three and four weeks ago was to adjourn both because of the uncertain state of what the government's position on certain provisions of the bill was at that point in time and to complete consultations that were to be conducted, I understand, till the end of October related to the regulation but also to what was going to be in the bill. The purpose was, because of the number of provisions that were going to be stood down at the time we adjourned -- it was above 20; I don't remember the exact number -- that we would come back with a set of amendments that were finally what the government thought it was going to do with the bill.

Unfortunately, we now have a package which was given to us last week and then a further package filed with us today which deals with a range of sections within the bill, including some very substantive sections, for example, dealing with the seniority provisions within the bill, which I understand reflect a different compromise than had been agreed to even last week: what happens with plans in terms of who has access, what's in certificates etc. So there are some very substantive provisions in the bill for which we have amendments only today.

I know the committee members opposite were in the committee with us and heard many things. I'm sure they'll agree that some of what is in these newer amendments does not reflect what we heard and may not even reflect what they thought was going to be in here. But let me say that I agree with my friend Mr Harnick to this extent: that given the substantive nature of the amendments filed minutes ago, in conjunction with the substantive amendments that were filed, I guess, within the last week and the number of outstanding amendments that already exist, it's only sensible to give all committee members, including the government members, some time to review how these fit together. That may even be just until tomorrow.

I would ask that we adjourn for today to tomorrow, to start at 3:30, so that we can review how the ones filed within the last few minutes interact with the others and so that we can make some sensible recommendations regarding them and have some sense of what they are. So I would move a motion to adjourn.

The Chair: It's a motion that has been moved by Mr Murphy. Debate on that motion?

Clerk of the Committee: No debate to adjourn.

The Chair: Oh, there is no debate; you're right. Let's vote on the motion.

All in favour of the motion to adjourn? Opposed? That is defeated.

Mr Fletcher, you're on the list.

Mr Derek Fletcher (Guelph): The government is ready to move with the legislation; we're ready to move with the amendments. If I remember correctly, the opposition walked out, wasting valuable time one day during the committee hearings. We also asked the opposition members if they would agree to standing down certain items because they were contingent and they had ramifications on other pieces that had been stood down already. They disagreed with that. We all say that we agree with employment equity, but when it actually comes down to doing something about it, it seems the opposition is ready to baulk at every step.

We're ready with the amendments. The amendments have been delivered within the time as specified by the Clerk's office and by the standing order. At this time, Mr Chairman, I believe you do have a position that you are going to mention to the committee members that we follow a certain procedure about starting over at subsection 3(1). I agree with you on that and I think it's time that we move ahead and put the games behind us.

The Chair: I appreciate what you said, Mr Fletcher. I have people on the list in terms of comments they want to make in relation to this discussion, so I'll go through that list. Mr Malkowski and then Mr Curling.

Mr Gary Malkowski (York East): Just for the record, I would say that two or three weeks ago there were members from the Liberal and Conservative Party who walked out, and that was wasting time. There were then members of the Progressive Conservative Party who did not show up the next day at the committee meeting.

They are obviously showing that they are uncooperative, and it looks like they're trying to waste the time of the committee. I think what we need is the consideration of the committee members so that we can have a good debate during the committee. We don't want to waste people's time. Designated group members are waiting to see the legislation, and we want to see it happen.

Mr Curling: I just wanted to place on the record in case when I raised the point when you started this meeting it was not heard because of the commotion that was going on: I think what an opportunity we are wasting now, really.

I want to thank the minister for coming because I think her input will be good, and the deputy minister. It seems to me members are in place, but while we have everything else in place, what has happened is we don't have the amendments in place.

It is unfortunate that my colleague Mr Malkowski feels that we are wasting time. When we said you weren't ready, you took the weeks off to write the amendments because many of your amendments were not ready, and we said, "Get your act together and come back." We gave you that time and we thought you would be ready. As a matter of fact, we thought you'd be ready before. I think that somehow the amendments arrived in the middle of last week, or the early part of last week, I think it was, and I was saying, "At least they seem to be getting their act together." When I read through those amendments, they seemed to make a bit more sense. It seemed that more thought had gone through it.

We were ready to go, and all of a sudden I don't know if I'm dealing with government amendments or alternative government amendments or replacement government motions. The fact is it's so difficult to go ahead with this, to make it one of the best or to make the employment equity legislation effective.

Mr Chairman, you instruct me as we move along that I haven't read that. I don't even want to say that this is deliberate. It almost seemed deliberate that at 2:30 on the first day we are back, when many, many issues are in the House and debated -- as a matter of fact, the issue of employment equity came up after the other minister botched it up like that and had to withdraw some of his statements.

While we are there trying to iron that out, while the Premier is trying to sort it out with the Management Board minister, then to arrive here -- I personally didn't even know there were amendments until I walked through this door at something to 4. My staff, of course, knew that I was in the House dealing with the matter of employment equity, and now I'm hearing if I have amendments, amendments to the amendments that they have put in. I hope that you can consider that. I think we can move better through this process if I understand what these amendments are about.

As I say, it is unfortunate that we have the players in place but we don't have the policy and the amendments in place on time, and it's impossible to do that job.

I take offence to the fact that Mr Malkowski would feel that we wasted time while Mr Fletcher himself realized that his statement about wasting time -- we walked out because we didn't have amendments before us, and you keep changing it as your thoughts go on. About 50% of this small legislation was withdrawn, and then to come back with amendments -- and not only that, but today what we have before us I think are amendments to your amendments that you put forward just a couple of days before.

I would urge you, Mr Chairman, so that we can get on with this bill and get it done as quickly and as efficiently as possible, to at least give the opposition the time, because I'm convinced the government side had the amendments with them before. If they didn't have them before, then it becomes a worse case in the sense that not even your own members in the government had these amendments. But let me say that you had them before. I don't want to talk about advantage and disadvantage, but we are at a disadvantage to give you the best kinds of comments and direction in regard to these amendments.

I urge you to look at it from that point of view and to adjourn it today. My colleague and I could take the time to look at these new amendments and put this in perspective, and let us start tomorrow immediately after the House in routine proceedings.

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The Chair: Thank you, Mr Curling. Mr Murphy, you're on the list. We've gone through it. We have gone through it. We've dealt with the motion to adjourn, so my sense is to want to move on.

Mr Murphy: It's a new point. I would like to know from either the minister, who is here, or from the parliamentary assistant the rule as to what amendments are in or out of order in terms of two hours. It says it has to be within two hours if possible, and I'm wondering if either the minister or the parliamentary assistant could tell me why it was not possible to get it to us before then.

Mr Harnick: Good question.

The Chair: Mr Fletcher or the minister?

Mr Fletcher: Why they weren't there two hours before? Because we were under no obligation to get them there two hours before --

Mr Murphy: Yes, you are.

Mr Fletcher: Let me just say it that way: unless it's possible.

Mr Harnick: Why wasn't it possible?

Mr Murphy: I asked why it was not possible.

Mr Fletcher: Because a lot of these amendments we were going over in the briefing with our own members before we could --

Mr Harnick: Oh, they get to see them before but we don't. I understand. It makes a lot of sense.

Mr Fletcher: A lot of these we were going over in a briefing beforehand, and until that meeting was finished, they couldn't leave the building.

Mr Murphy: So there's no technical reason of urgency, there's no technical reason of the impossibilities; it's because you preferred to go through your committee first.

Mr Fletcher: I think what you have to understand --

Mr Murphy: Madam Clerk, if I can, I was wondering, are there rulings on the issue of amendments being in or out of order and dealing with the issue of what "if possible" means? Given the completely inadequate reason provided by the parliamentary assistant as to why it was not possible to provide us with these within the time limits imposed by the rules, I'd ask that you rule the new package of amendments out of order for today.

Mr Fletcher: Mr Chair, could I refer that to the minister also?

The Chair: Very well. Just to answer your question, I will not do that, Mr Murphy.

Mr Murphy: That's fine. No, no, no, that's fine.

Hon Elaine Ziemba (Minister of Citizenship and Minister Responsible for Human Rights, Disability Issues, Seniors' Issues and Race Relations): If I could just follow up, this bill has been drafted with input from a lot of people, people who are even in this room, community people. It's very important, if we're going to have a piece of legislation that works, that is effective, that does the job we all want it to do, and I heard so eloquently spoken by members of opposition today about fair access, equal opportunity and other comments -- if that's going to be the case, then we have to make sure we are doing this in appropriate fashion and that we have input.

The input, as I said, over the last two and a half years has been carefully done with many, many members of many different groups and organizations, including business and labour. It was very important that we do this, so your concern about the many new amendments that have come forward and the opportunity.

I might hasten to add, from having spoken to people who are in this room who have spoken to your staff, that they offered, I think up to three times last week, to have very technical briefings, in-depth technical briefings, that would go over these amendments and discuss the possible amendments we are bringing forth.

Mr Harnick: How could they? The amendments --

Hon Ms Ziemba: No, no. Come on.

Mr Murphy: You can't discuss what you haven't --

Hon Ms Ziemba: Can I just --

The Chair: Mr Harnick, would you let her finish, please.

Hon Ms Ziemba: If I could please continue speaking, there were amendments that were given to you a week ago, last Monday: one whole week. We also indicated at that time to your staff, and they understood very clearly, that there were going to be new amendments that would be coming forward as well. We actually even specified what those new amendments would be and what area they would pertain to.

We offered to give technical briefings which would have encompassed not only amendments that were tabled with you but also the proposed amendments that would be coming forward, to get your input as well, because that's what we have been trying to do, to get input from all levels. Unfortunately, we were not able to get people to agree to those briefings and to have that opportunity. I would have loved to hear your comments about some of the proposed amendments we are bringing forward.

Mr Murphy: You should have come to committee then, Minister, more than just this once and you would have heard them on a day-by-day basis.

Hon Ms Ziemba: I read Hansard very carefully, I watched the proceedings when I could and have followed this very carefully, not only hearing what you have had to say. I've spoken very closely with a couple of other critics, but as well to employers, labour, designated group members and the committee members who have been following this piece of legislation very carefully, who have been working very hard on this piece of legislation, who have kept me up to date not only on a daily basis but almost on an hour-to-hour basis. I've been very fully informed, but thank you very much for your courtesy and concern.

Mr Curling: On a point of order, Mr Chair: The minister said these amendments were available last week. She's right on that. She also asked, could we meet? To be brief, she's also right in that.

The Chair: But it isn't a point of order, Mr Curling.

Mr Curling: It is. I haven't said it.

The Chair: Make the point and let me see whether it's any different from the points you're making. Go ahead. Continue, please.

Mr Murphy: You let Mr Winninger go on for a little while.

Mr Curling: The fact, Mr Chair, is that it was on Tuesday, in the evening, that I was asked if I could see the minister. I was travelling on Thursday. I sent a message that on Thursday I was leaving, so it was only Wednesday, to leave me one day to make that decision. When she said we refused to meet, that's not quite correct.

The Chair: Thank you for the point, Mr Curling. I've got two people on the list still.

Mr Murphy: The minister's speech was in response to my question about why it was not possible to file these amendments within the two hours required. I didn't hear in that an answer to the question. I suppose the answer I did hear, about two and a half years' worth of consultation, speaks to the logic of there being no reason why it wasn't possible. So I repeat my request that you make a ruling as to whether these are in or out of order, given the absence of a reason why --

The Chair: They are in order, Mr Murphy.

Mr Murphy: Fine. I would like then to ask in that same vein either the minister or the parliamentary assistant whether this is it.

Hon Ms Ziemba: Yes.

Mr Murphy: So we're getting no more amendments. We've finally done it?

Hon Ms Ziemba: This is it.

Mr Murphy: Okay.

Hon Ms Ziemba: If we could proceed, we could probably complete and get on to your bill as well.

Mr Murphy: I'd like to see your bill; I'm waiting for your promised bill.

The Chair: I have two more speakers on the list. Unless there is something different, I want to propose we move on. If we're going to cover the same ground, I will say that we need to move on. So I have the two speakers, Ms Akande and then Mr Harnick.

Ms Zanana L. Akande (St Andrew-St Patrick): Well, that was exactly going to be my point, Mr Chair. I was going to put a motion that we begin dealing with the business of this committee and the amendments immediately. I know that a motion to end isn't discussed, but a motion to begin may be.

The Chair: Ms Akande, rather than dealing with that motion, let me propose that we hear Mr Harnick. If it's on a new point, then we would hear it. If it's on the same point, I would say we need to move on, okay? Then we're prepared, because I think we've had sufficient discussion, to move on.

Mr Harnick: Mr Murphy asked for a ruling as to whether these amendments were in order. I wanted to speak on that. It appears you've given that ruling without affording me the opportunity to speak. I don't know whether there's any purpose, because I don't want my friends to jump out of their skin telling me that I'm challenging the ruling of the Chair.

I listened to what the minister said, and if these amendments were available I can't conceive of why an invitation to the party critics would have been made last week when they were all away from Toronto and on their constituency weeks, with plans made to allocate their time well in advance. It seems rather amazing to me that we walked out of this committee three or four weeks ago because we knew there were amendments coming and there was no point sitting around to discuss them. If the amendments were available last week, and that's when the minister found it advisable to ask people to come for briefings when they already had their time allocated and they were away from Queen's Park, and that's her idea of being fair, I find that rather astounding.

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If the minister tells us now -- and I have no reason to doubt the veracity of what she says -- that these amendments were available last week and Mr Fletcher tells us, in the same breath, that these amendments were being discussed right up until 2:30 and couldn't be released, I have some wonderment as to what is really going on here. The fact is, if these amendments were available last week, on Monday, when the minister was evidently sending out invitations to meet with people for briefings, why were some amendments delivered to us at that time and the balance of the amendments weren't?

I can't conceive, Mr Chairman, that you have heard any argument that has indicated to you that it was impossible to provide the requisite amount of notice for the delivery of these amendments today. There hasn't been one answer to show that it was impossible for these amendments to be delivered. The minister says, "We called you to come for a briefing." Well, if they were ready then, why didn't you send them out? I find it astounding that the briefing had to take place last week, after everybody left to be on constituency week. I'd like to think that wasn't the intention of the minister, but the fact is that when Mr Fletcher tells me that they were poring over these till 2:30 and were working on them right up to the last minute --

Mr Fletcher: I didn't say that.

Mr Harnick: He said 2:25; I'm sorry. Mr Murphy wrote down 2:25, and I know he's a very accurate note taker. But what the parliamentary assistant says and what the minister says are totally at odds with one another.

Hon Ms Ziemba: No, they're not.

Mr Harnick: He said they were working on the amendments and couldn't release them, they were working on them till 2:25, and you're saying, Minister, with respect, that the amendments were available last week and you were inviting everybody to tea to come and discuss them. Now, the fact of the matter, and the point I'm trying to make, is that the rule in the standing orders says that these amendments have to be delivered two hours before the committee meets.

The Chair: If possible.

Mr Harnick: Let me get to the "if possible." There is not one scintilla of fact before you to indicate that it wasn't possible, on the story of the minister.

The Chair: Mr Harnick --

Mr Harnick: Just a second.

The Chair: -- I'm asking you to wind up because, you see, we have heard --

Mr Harnick: I'm asking you to reconsider, because you didn't make a decision based on everybody who wanted to make submissions on the point Mr Murphy made. If you'll let me finish my submissions, I'll be delighted to hear what your decision is. The fact of the matter is --

The Chair: I have made a decision already. I'm allowing you to complete the point, which is an unending point.

Mr Harnick: And I'm going to ask you to reconsider your decision, because you have made a decision, sir, without one factual bit of evidence before you as to why it was impossible to deliver these amendments within the time frame in the standing order. The only reason you're making the decision you're making is because it's the politically partisan decision that the minister's telling you to make. That's the only reason you're making that decision. If you're making it based on the facts before you, these are out of order.

The Chair: Mr Harnick, I made a decision based on whether or not filing with the clerk was done appropriately with the standing orders. They are.

Mr Harnick: Why? Give us some reasons.

The Chair: It says two hours, if possible.

Mr Harnick: Tell me why it was possible --

The Chair: I don't need to give you those other reasons. It's not my job to give you those other reasons.

Mr Harnick: Because there are none.

The Chair: The parliamentary assistant has made some statements, the minister has made some statements --

Mr Harnick: And they're totally at odds with one another.

The Chair: They may be. All of you have made points on this matter, so what I'm going to recommend is that we move on.

We left off the last meeting on section 23. I'm proposing that rather than beginning at 23 and on, we go back to section 3.

Mr Murphy: Can I get some information on this? What's the routine going to be? I have a package of amendments that I had that we were dealing with. You've given us a new package which starts with an 18a. Is this every amendment to be debated --

The Chair: Yes.

Mr Murphy: -- except for the ones that we got today, which start at 18b?

Clerk of the Committee: To be inserted.

The Chair: To be inserted. Exactly.

Mr Murphy: All right. I know we dealt with some sections. We stood down a number of sections. I'm wondering if, before we decide how to proceed, you or the clerk could, for my purposes, outline what we've passed and what we've stood down, to the point that we've completed.

The Chair: We could do that or --

Mr Murphy: It's important for the purpose of deciding how to proceed.

The Chair: We'll do that publicly? Do you want to do that publicly for all? Okay?

Mr Murphy: I think it's probably better, so that we can all have --

Ms Akande: Could we not do it while we're going through it?

The Chair: We could. It would be easier. He's asking a question. Hopefully, we'll resolve it in seconds and then we can move on.

Mr Winninger: Sometimes it can be helpful to have the clerk's summary photocopied so that everyone can follow along. It's only a page or two.

The Chair: We could probably do that. We'll photocopy this. That gives you an indication of what has been passed and postponed. Then you can see that for yourself.

Mr Murphy: That would be of assistance in deciding how to proceed. While the photocopies are being made, can I ask what the numbers in the corner mean?

Ms Akande: They're your house address, just in case you get lost, Mr Murphy.

The Chair: These top right-hand numbers?

Mr Murphy: Yes.

The Chair: Madam Clerk, these top right-hand numbers, they're to correspond with their originals, the old ones, correct?

Clerk of the Committee: That's right.

The Chair: Wherever you find an 18a original or former and then you see this 18a, you remove the old and put this in its place.

Mr Murphy: So where it says 18a up here, that means the government previously moved an amendment to this section and is replacing it now?

The Chair: That is correct.

Mr Murphy: Because there are some amendments in here that don't have that fancy number in the top right-hand corner.

Interjection.

Mr Murphy: No. That could very well be. I'm just asking for the --

The Chair: This should be ready in a few moments, up to five minutes, I suspect. In the meantime, those members who need some assistance in terms of inserting the new into the old, the clerk can be of assistance.

Mr Murphy: That's always the government's problem, inserting the new into the old.

The committee recessed from 1630 to 1635.

The Chair: All of you have now received this document that tells you what motions have passed and which have been postponed. Before we begin, I want to welcome the Deputy Minister of Citizenship -- it was an oversight of mine -- Naomi Alboim for being present as well. Welcome to this committee.

I had proposed that we go back to section 3 because it would facilitate the whole process. If it's all right with everybody, we'll begin at section 3.

Mr Murphy: If I can, part of the reason I asked for this was to figure out what we had carried and what was left. Part of section 3 was postponed, so in theory that's still open. Part of section 10 was postponed; a series of amendments on that was postponed. Section 11, a series of amendments on that; sections 12, 13, 14, 15, 16, 18, 24, 25, 26, 28, 33.

The Chair: We had left off at section 23.

Mr Murphy: Those were the ones that were stood down --

Mr Harnick: Respectively.

Mr Murphy: -- that's right -- at the end of the last -- 36 and 38. We reached what point in the last session?

The Chair: We were at section 23.

Mr Murphy: I'm just trying to figure out how many we have to go back to. We have 10 postponed sections to go back to and then the subsequent 15 or so after that.

The Chair: We won't have to postpone those others, because we're now dealing with them.

Mr Murphy: That's correct, but I just wanted to get a sense of where we're at and how many were stood down.

The Chair: I think you've counted all right.

Mr Murphy: Good. Thank you. I'm glad you recognize that, Mr Chair.

The Chair: Would you like to give an opinion now in terms of whether we begin at section 3 or 23?

Mr Murphy: Yes. I'm still looking through the amendments just tabled. Do you know, Mr Chair, how many deal with the sections we've stood down or not yet closed the book on?

The Chair: No. We'd have to do the same count again, as you have begun.

Mr Murphy: Oh, you do it by weight maybe. I'm about halfway through the pile.

The Chair: I'm going to Mr Murphy first, Mr Harnick.

Mr Murphy: I'm just trying to think of what's more efficient in terms of substantive provisions too. There's some relation between the amendments we've stood down and the amendments that are outstanding and how they interact with each other. That was the logic behind the standing down by the government of the 25 sections that were stood down.

The Chair: The point of beginning at the beginning literally is that we don't have to make those connections as much any longer because once we deal with them, then all the others will fall into place.

Mr Murphy: Perhaps Mr Harnick can make his comment. If it's all right with the Chair, I'd like to just look through this briefly while Mr Harnick is making his no doubt cogent comments.

Mr Harnick: I would like to make a motion that we deal with sections 1 through 9 today and no further, if we get that far, because it is only at section 10 that the last batch of amendments that we didn't have an opportunity to see in advance kick in.

I would like to move a motion that we only deal with a maximum of sections 1 through 9 today, and that when we get through section 9, we then adjourn for the day so that we will not be dealing with the new amendments that kick in at section 10. That's the motion I would like to make.

The Chair: Discussion on that motion?

Mr Fletcher: We can't support the motion to go from sections 1 through 9, or to 10, but starting at section 3 and working with all the ones that have been stood down, not the ones that have already been carried. We're not willing to discuss motions and amendments that have already passed.

The Chair: Any further discussion on that motion?

Mr Murphy: Can I understand Mr Fletcher's objection? Was it that we deal with amendments 1 through 9 and then stop? Sorry, I just didn't understand what he said.

Mr Harnick: Sections 1 through 9. But he says he's already done 1 and 2, so we don't start till 3 because we've already passed --

Mr Murphy: Sections 3 through 9 and then stop: Is that what I'm understanding?

Mr Fletcher: But that's not what the motion said.

Interjections

Mr Fletcher: I want to hear what's being said as far as the motion and section 3 is concerned.

Mr Murphy: Sorry, I was trying to understand.

Mr Fletcher: We've already done sections 1 and 2. I'm sorry; I wasn't quite listening; I had someone in the back.

Mr Murphy: If I can, I want to understand --

The Chair: He didn't hear what you had said and wanted to know what your objections were. Mr Harnick has proposed that we go to sections 1 through 9. It's true that we've dealt with 1 and 2, but there's only one section to be dealt with because we've dealt with all the others. In essence, we would be dealing with section 3. Mr Harnick says let us deal with 1 to 9 and at that point adjourn, and you made some comments in relation to that.

Mr Fletcher: Okay, I understand that.

Mr Murphy: You'd agree with sections 3 through 9? You're not agreeing with that.

The Chair: He's not agreeing to the motion, Mr Murphy. Any further debate on that motion?

Mr Murphy: Can I have the motion clarified again? Sorry.

The Chair: Mr Harnick, is that 1 to 9 and after that we adjourn?

Mr Harnick: Yes, we adjourn at a time that we will start dealing with the new amendments that were just delivered today. I'm not proposing that we vote on sections we've already voted on. Sections that have been completed, to which there are no amendments and we've already voted on, are obviously sections we don't have to deal with again, unless Mr Fletcher wants to give us the opportunity to deal with them again.

The Chair: All right, if there's no further debate, we're ready for the vote on this.

Mr Harnick: I'd like 20 minutes.

The Chair: A 20-minute recess, then. This committee is recessed for 20 minutes.

The committee recessed from 1643 to 1702.

The Chair: I call the meeting back to order, please.

Mr Harnick: On a point of order, Mr Chair.

The Chair: Do I have Ms Akande on the list?

Ms Akande: Yes.

The Chair: A point of order on something we haven't dealt with yet?

Mr Harnick: Yes.

The Chair: Go ahead.

Mr Harnick: Pertaining to the motion that's on the floor, I just might advise everyone that the idea to proceed in the way the motion has been worded came from Mr Charlton to try to break the impasse; just so you know that when you vote it down, it's your House leader's idea.

The Chair: Thank you, Mr Harnick, for the point. Ms Akande, did you want to speak to this motion?

Ms Akande: Yes, I did. You know I'm concerned, Mr Speaker. It's obviously --

Mr Gordon Mills (Durham East): Chairman. He's not elevated yet.

Ms Akande: I'm sorry, Mr Chair. You're right. This is obviously a charade. I mean, 20 minutes to assist people to shuffle through --

Mr Murphy: Vote.

Ms Akande: I'm speaking to the motion. Have you begun to be the Chair? Are you the Chair, Mr Murphy?

Mr Harnick: There's no discussion.

The Chair: This is a motion of yours, Mr Harnick. She's speaking to it.

Mr Harnick: If you're reopening the discussion, then we get another 20 minutes.

The Chair: The 20 minutes is to call for numbers. She is speaking to your motion.

Mr Harnick: Then you come back and you vote. The discussion is over.

The Chair: I'm sorry, I don't see it that way. Ms Akande, continue please.

Ms Akande: It's obviously a charade, Mr Chair. We have people here from the community who are concerned about the conditions of their lives. We have people here who are advocates of people who are disabled, people who belong to designated groups, and also people who are just concerned about the future of this country. I really feel that we're wasting the taxpayers' money, so it would be my feeling that the question should be put. I move that the question be put.

The Chair: The question has been put.

Mr Fletcher: Could I have some clarification on the motion? Is the motion from 1 through 9?

Mr Harnick: You're not going to vote on sections you've already passed. Anything outstanding --

The Chair: That's correct, Mr Harnick. The question has now been put. All in favour of putting the question?

Mr Harnick: Of putting the question or the motion?

The Chair: Putting the question. Okay, that passes.

Now back to Mr Harnick's motion that we deal with sections 1 to 9 and then adjourn after that. All in favour of that motion? Opposed? Very well, that passes.

We've dealt with sections 1 and 2. We're into section 3, as amended. Subsection 3(1), government.

Mr Fletcher: I'd like to move that subsection 3(1) concerning confidential business information be withdrawn. The reason that it's being withdrawn is that it's being dealt with in the new subsections 14(6), (7).

Mr Harnick: Subsection 3(1), confidential business information, is gone?

Mr Fletcher: No, it's being dealt with in another section.

Mr Harnick: But it's gone from this section?

The Chair: He's withdrawing that.

Mr Harnick: But where is it being dealt with, in 14?

Mr Fletcher: Subsections 14(6), (7).

The Chair: Mr Fletcher, 3(1) then has been withdrawn, all right?

Mr Fletcher: Yes, dealing with confidential business information. I believe this amendment was introduced, was it not? Was it not introduced?

Clerk of the Committee: No, it was tabled last week.

Mr Fletcher: I thought it was one that was stood down.

The Chair: That was tabled last week. It's a new amendment.

Mr Fletcher: Yes, it was tabled last week and we're withdrawing it.

The Chair: That issue has been withdrawn. What other matters do we have now?

Mr Murphy: I thought you guaranteed that we were organized.

The Chair: We're now into subsection 3(1), government.

Mr Fletcher: We have a technical motion which corrects the French language translation and we need unanimous consent to deal with this one, I believe. Is that correct?

The Chair: No.

Mr Fletcher: I can just introduce this?

Mr Curling: Mr Chair, just a matter of procedure here: We have two amendments before us here, one stating "18a" on the top there and the other "18b." Is it the French version one, 18b, you're dealing with?

The Chair: Correct, 18b, the French version. Yes.

Mr Murphy: Amendment 18a is withdrawn.

The Chair: Amendment 18a has been withdrawn and 18b is the French version.

Mr Curling: So the one you put in last week, just recently, has been withdrawn now.

Mr Fletcher: Yes.

Mr Harnick: What about 18b?

The Chair: We're now dealing with 18b, Mr Harnick.

Mr Fletcher: We're going to do that now.

The Chair: Mr Fletcher, go ahead.

Mr Fletcher: I move that the French version of the definitions of "employé" and "employé temporaire" in subsection 3(1) of the bill be amended by striking out "temporaire" wherever it occurs and substituting in each case "embauché pour une période déterminée."

The Chair: First of all, do people understand that? "Embauché pour une période déterminée" -- do you have an English version with the text, or should I just do it literally? It is "hired for a determined period" literally. Is that okay? Debate on this? Discussion on this?

Mr Curling: I just want to know, is this reflected in any other bill at all, or is it unique to this one?

The Chair: Monsieur Fletcher or any other staff members?

Ms Kathleen Beall: After this motion had been passed and therefore the French version of this motion had been officially passed by this committee, the request was made of the French translators in the legislative counsel office to reassess this term to determine if it was, linguistically speaking and in law, the most appropriate translation of the term "term employee."

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The French translators in the linguistic section of the legislative counsel office did research and it was their advice to us that this new translation would be a more appropriate translation and would more accurately reflect the intention of the terms in this legislation and would be consistent with and in keeping with other French terms referring to term employee. So it's on advice of the French translation unit. Having made the request to them, they gave the advice back that this would be an appropriate change to make.

Mr Curling: Therefore, consistent with the French terms -- but you're saying, though, that this is maybe the first time we're putting the proper French term in the legislation.

Ms Beall: I wouldn't quite put it that way. What I would say is that this translation is a better translation than what appeared in the French version of the motion as it originally came before this committee. This term appears in subsection 3(1) where we use the words "term employee." This would be an amendment to this section just to improve the French translation of it.

Mr Harnick: Is this the same term that's used in the Ontario Labour Relations Act?

Ms Beall: I don't know the answer to that with respect to that particular statute.

Mr Harnick: Maybe we could check the Ontario Labour Relations Act. I'd feel comfortable if we were using consistent terms in terms of temporary employees versus hired for a determined period. I don't know whether there's any difference, but it would be interesting to see what the Ontario Labour Relations Act did with like terms because I think we should be consistent.

The Chair: Any comment?

Mr Fletcher: No.

The Chair: Does legislative counsel have any opinion?

Ms Lisa Joyal: If the committee wants me to find out the French version of this term, if it exists in the Labour Relations Act, I can --

Ms Beall: First of all, I'm not sure the term "term employee" is used in the Labour Relations Act and therefore if it's not, of course, there would be no French translation of the term.

Mr Harnick: Maybe we should look in the Employment Standards Act or acts that use the same terms.

The Chair: As Ms Beall leafs through that, Mr Winninger.

Mr Winninger: I just wanted to ask Mr Harnick if he was referring to the same Labour Relations Act that this government improved and made more effective --

Mr Murphy: No, not that one.

Mr Winninger: -- despite the opposition of the Conservatives.

Mr Harnick: That remains to be seen, Mr Winninger. We'll see when the next election comes --

Ms Akande: Whether it's the same act.

Mr Harnick: -- whether you receive the blessing of the electorate, because you can count on the fact that it will be an issue.

The Chair: Mr Harnick, that was a rhetorical point.

Mr Harnick: We'll see who is here next time.

Mr Mills: That's for sure.

Mr Fletcher: Is this passed? Are we voting on this?

The Chair: We're waiting to see whether, in the opinion of the three lawyers, we have something else to add to this discussion. If not, we'll move on.

Ms Beall: In response to the question raised by Mr Harnick, we are advised by legislative counsel office, the translation unit, that the translation as it appears in this motion better reflects the meaning of the term "term employee." That is why the motion has come forward, to change the French translation because it is a better translation.

Mr Harnick: I know that. That's what you said originally, and what I wondered is whether other acts that deal with the terms "employer," "employee," "part-time," "full-time" also use the phrase that you're now amending this to or whether they use another term. I think we should be really developing the language of this act to be consistent with the language of other acts.

Mr Fletcher: I agree.

Mr Harnick: Can't anybody go and take a look in the Revised Statutes of Ontario and see how they phrase these same words?

Ms Joyal: I'm not sure what research my colleagues on the French side of the office have done but I know they have done linguistic research and they have satisfied themselves that this is the most accurate reflection of what is in the English version of the bill.

Mr Harnick: I just wonder if you could find out for us whether the Ontario Labour Relations Act or the Employment Standards Act use these terms.

Mr Mills: Or if they don't, what's the --

Ms Jenny Carter (Peterborough): So what?

Mr Harnick: That'll tell me whether I should vote for this or against it, but at least I would know. I know it's very easy for anybody to slap whatever they want on a piece of paper, but some day somebody is going to have to deal with these terms. There may even be an occasion that somebody will have to deal with these terms in the French language and they may want to look up certain definitions; there may be certain cases from other statutes that have been decided, dealing with these very terms.

I don't know whether anything turns on it, but surely we should be careful enough in going through the clause-by-clause to find out how these terms are used in acts that deal with the very terms that are before us. That's all I want to know. It's pretty simple.

Mr Fletcher: I'm ready for the vote.

The Chair: Okay. There is no answer to that request, Mr Harnick.

Mr Harnick: There is. All you have to do is pick up the statute book and tell us.

The Chair: You raised a point. There is no answer to it. It's not part of any motion. We're dealing with this motion, therefore the speaker is Mr Murphy.

Mr Murphy: I heard Mrs Carter say, "So what?" in response to Mr Harnick's point and I think that really is a sort of stunning disregard for the importance of actually getting it right, first of all.

But second, there is a different definition in the Ontario Labour Relations Act than there is in the Employment Equity Act. There are provisions in the amendments --

Interjection.

Mr Murphy: Mr Fletcher, if you have the courtesy of listening, I will return the favour to you.

There is an amendment that the government has moved later on in the bill where certain plans and provisions in terms of undue hardship can be taken before the Human Rights Commission or the Employment Equity Commission, and if someone is preferring to go forward in the French language in that context, a different definition, a different meaning of the definition of what a temporary worker is can have very different results. Certainly the purpose of legislation in that context is to have similar results. So that is "So what?"

Mr Fletcher: You've already heard that it's okay.

Ms Carter: We'd have to compare to make sure we were looking at --

Mr Murphy: They have the right to bring an application in French and deal with it in French as well, so you've got to make sure there is consistency in those definitions. Mr Harnick has asked a sensible question and "So what?" is entirely inappropriate in response to it.

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Mr Fletcher: I thought it was all right.

Ms Carter: That was a question; I want the answer.

Mr Harnick: Mr Chairman.

The Chair: Mr Harnick, on what issue?

Mr Harnick: On the same point, because I gather we're discussing subsection 3(1).

The Chair: We're discussing those words, "embauché" --

Mr Harnick: You tell me it is impossible to find an answer to the question I pose.

The Chair: I didn't say that; I said there was no answer to your question. Therefore, we're moving on.

Mr Harnick: Therefore we just move on and ignore it. Is that the way the New Democrats do business in this province: if you can't find an answer, you just give up and move on? What I would suggest, Mr Chair, is that if someone could go out and get us the volume of the Revised Statutes of Ontario for 1990, we will see exactly how these same words are described in the French language in the Revised Statutes of Ontario. There is nothing impossible about going and getting those volumes and looking in them. We have people here who can understand all of this material, if only someone will go and get the book. It is not impossible to look in the book. I know it's difficult and I know it's time-consuming and I know it's almost exhausting to turn the pages of the book, but we can do it.

Hon Ms Ziemba: That's very rude to the civil servants who are here.

Mr Harnick: The minister says it's very rude.

Hon Ms Ziemba: To the civil servants who are here.

Mr Harnick: No, it has nothing to do with the civil service; it has everything to do with the Chairman of this committee saying, "Let's take a look in the book." All I'm asking the Chairman to do is to look in the book or give us the opportunity to look in the book so I know what I'm voting on.

Ms Akande: There are wonderful things about language. One of the things is that it has an appropriate environment and it is rule-governed. It means that you have definitions for words and translations for them and they may have different translations, but as long as the meaning is maintained, the translation is acceptable. While I am interested in your pursuit of language, I do not think that it is in any way preventing total comprehension of this bill. So it would be my feeling and my motion that the question be put.

Mr Harnick: I'd like to respond to that, Mr Chair.

The Chair: The question has been put, Mr Harnick.

All in favour of putting the question? Opposed? That carries.

Mr Harnick: I'd like a 20-minute recess on that.

The Chair: I'm afraid we can't; not on that. The question has been put, Mr Harnick.

On subsection 3(1), all in favour of the amendment?

Mr Harnick: I'd like 20 minutes.

The Chair: You can't, Mr Harnick; the question has been put.

Mr Harnick: No, it hasn't. I'm entitled to ask for 20 minutes on that.

The Chair: No, you're not.

Mr Harnick: Since when am I not?

The Chair: Madam Clerk, can I have your opinion on this?

Clerk of the Committee: The closure motion has been moved to vote on the question. At this point, the question is immediately voted upon.

The Chair: All in favour of this amendment? Opposed? This amendment carries.

Moving on to subsection 3(3.1), Mr Fletcher.

Mr Fletcher: I'd like to withdraw the subsection 3(3.1) that's presently before the committee and replace it with a new subsection 3(3.1).

I move that section 3 of the bill be amended by adding the following subsection:

"Deemed employers

"(3.1) Subject to subsection (3), two or more employers are deemed to constitute a single employer for the purposes of this act if,

"(a) the employers are declared by the Employment Equity Tribunal under section 28.1 to constitute a single employer; or

"(b) the employers are declared by the Ontario Labour Relations Board under subsection 1(4) of the Labour Relations Act to constitute a single employer for the purposes of that act, regardless of whether the board's declaration was made in respect of all or part of the employers' workforces."

This amendment now includes provisions for non-unionized workplaces in addition to the provisions for unionized workplaces provided for in the motion tabled earlier with this committee. Under this new section, both unionized and non-unionized workers are provided with an alternative mechanism for seeking declarations of employer status. The amendment permits applications to be made to the Employment Equity Tribunal by employers, employees or bargaining agents for determinations of whether two or more employers constitute a single employer for the purposes of employment equity.

Previous provisions regarding declarations by the Ontario Labour Relations Board have not changed, and under the Ontario Labour Relations Act, the Ontario Labour Relations Board has the authority to declare that two or more related employers are to be treated as one employer for the purposes of labour relations. If the labour relations board has made such a declaration, the employers will be treated as one employer for the purposes of this bill also.

The Chair: Debate on that?

Mr Harnick: This section refers to section 28.1, and subsection 28.1(3) sets out the tests for a tribunal finding that employers are associated or related. I wonder if, under clauses (a), (b) and (c) of subsection 28.1(3), those three criteria are the same as the criteria in the Ontario Labour Relations Act, to declare companies associated or related companies.

Ms Beall: No. The wording you will find in the government motion on section 28.1, under subsection (3), is not exactly the same as what you find in the Labour Relations Act.

Mr Harnick: How does it differ and why does it have to differ for the purpose of this act?

Ms Beall: Perhaps I can tell you how it differs. I think the question as to why it differs would probably best be left to the parliamentary assistant, as that is a policy objective. I can tell you that it does differ in that clauses (b) and (c) are not found in the Labour Relations Act and clause (a) is found in the Labour Relations Act.

Mr Harnick: Is clause (a) the only criterion under the Labour Relations Act?

Ms Beall: No, it is not. The Labour Relations Act provides that the employers carry on associated or related activities or businesses under common control or direction. Either through its own legislation or through rulings of the labour relations board, it also looks to see whether or not such an order about related employers would be appropriate in the context of labour relations and in the context of the application of the Labour Relations Act.

This Employment Equity Act motion does not reference those sections of the Labour Relations Act which reference back to its own self.

Mr Harnick: So other than that, (a) would then be common. If the parliamentary assistant can answer the aspect that you didn't want to deal with, the policy aspect, what is there about (b) and (c) that necessitates them being part of this act, even though they're not found in the Labour Relations Act, to really come up with the same answer?

Ms Beall: Since I've been asked by the parliamentary assistant to answer this, I will continue on, just to make it very clear that I'm not doing this. The Labour Relations Act, when it looks at related employers, looks at that in the context of the Labour Relations Act. This motion, section 28.1, will look at related employers, or I should say, employers who are found to be a single employer for the purposes of employment equity.

The test in the Employment Equity Act would be relating it to finding that more than one employer constitutes a single employer, using criteria which are related to the Employment Equity Act and the purposes of the Employment Equity Act as opposed to the provisions of the Labour Relations Act, which find related employers with respect to the purposes of the Labour Relations Act and in the context of the Labour Relations Act. They are two different statutes.

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Mr Murphy: Some follow-up questions.

The Chair: Sure. Mr Harnick, are you yielding the floor?

Mr Harnick: For the moment, sure.

Mr Murphy: I want to go to section 28.1, because I think that's really ultimately the substance of subsection 3(3.1), and follow up on Mr Harnick's comments with respect to clause 28.1(3)(b). I am wondering how far you envisage this provision going, because you could have different employers carrying out common employment practices. I'm wondering about a real estate agent context. You know, you have some kind of agency that employs separate brokers who employ common practices within each real estate office because that's sort of what they sign into by a franchise agreement, for example, or other franchises could fit into that.

I'm wondering if you see a common employment practice being mandated by a franchise agreement or some kind of umbrella being the kind of common employment practice which would be "under common control or direction" by virtue of a franchise agreement or other kind of contractual relation, therefore coming within clause 28.1(3)(b).

Mr Fletcher: I think the tribunal will make that determination. As you read in section 28.1, "The tribunal may make an order that...," it all depends on what the tribunal says. The legislation is not saying, "You are a related employer" or anything else; it's going to be determined by the tribunal.

Mr Murphy: I guess I'm asking whether you think it goes that far.

Mr Fletcher: I'm not going to interfere with the tribunal, and neither is anyone else. The tribunal will make that decision.

Mr Murphy: I'm not asking you to interfere with the tribunal. We have to have some information about the impact of a provision. We're not just guessing. Presumably, the reason you put a provision in the legislation is because you have some idea of how far it goes and how far it doesn't go. I'm asking what your view is as to how far it does and doesn't go. The deputy is here.

Ms Naomi Alboim: It's not a matter of common practices; it's a matter of employment practices under common control. It's a matter of whether there is common control --

Mr Murphy: Or direction.

Ms Alboim: -- or direction that has an impact on the employment practices. So it's important where you see the word "common." If there is a central head office that in fact determines the employment practices and those employment practices are directed from the centre and controlled from the centre, then that would be one of the factors that the Employment Equity Tribunal would take into account in determining relatedness.

Mr Murphy: I think that's right, but I think what you're then telling me is if Century 21, as an example, says, "Well, you shall wear a gold jacket and you have to have a broker's licence," whatever the conditions are of employment by brokers under each office, Century 21, as an umbrella organization, could direct certain employment policies and practices and therefore come within the provision of clause 28.1(3)(b).

Ms Alboim: Kathleen may want to respond to that as well, but we're not talking about wearing of jackets as an employment practice; what we're talking about are those employment practices and policies that are related to hiring, firing, training, promotion, those kinds of things that pertain to employment equity.

Mr Murphy: Where does it say that?

Ms Alboim: The common parlance for employment policies and practices which we use throughout the bill refers to those kinds of things that I was referring to as opposed to the clothing the people wear, I would think, but Kathleen may want to add to that.

Ms Beall: One would read this section with reference to employment policies and practices in light of how the term is used everywhere else in the legislation. When you go back to section 10 of the bill -- that's where the employer, or the employer and bargaining agent if it's a joint responsibility system, reviews the employment policies and practices -- you would read this section in light of the other section, especially because it talks about "a single employer for the purposes of this act," in the opening flush of subsection 28.1(3); also in the context of clause (3)(c), a comment to giving full effect to this legislation.

Mr Murphy: If that is the purpose, and I have no reason to say that it isn't, then I would think, for the purposes of clarity, we should have something that says that. You could say in clause 28.1(3)(b), "The employers carry out employment policies and practices as outlined in section 11." This would serve the same purpose that the deputy has outlined and that you've said is the purpose, while giving clarity and direction to the tribunal, because I do think that this (b) is a bit of an open book.

The tribunal could go on as broad a fishing expedition as it wishes to depending on its composition, whoever is on the tribunal panel at the time. So I think there is some logic to making the wording reflect the interpretation that the deputy has outlined.

Mr Fletcher: Perhaps Mr Murphy has some good points on section 28.1, but when we get there we can discuss amending 28.1. Right now, we are on subsection 3(3.1).

Mr Murphy: I understand that, but I prefaced my comments by saying that really the substantive part of 3(3.1) is 28.1, so we are discussing it in the context of 3(3.1).

Mr Fletcher: Yes, but even if we pass this subsection and section 28.1 is amended, it is still in line. So we can do this one and get there when we get there.

Mr Murphy: Yes, but I do like to have some sense of what I'm in theory approving before I vote for it. I just want to ask some more questions of clarification if I can.

Is there a similar provision to subsection 28.1(2) in the Labour Relations Act?

Ms Beall: Yes, this provision is precisely the same as what is in the Labour Relations Act.

Mr Murphy: I'm going to go back to clause 28.1(3)(c). There isn't anything I see that limits that clause other than saying that ultimately it's a bit redundant. As you've rightly said, in the context of 3(3.1), "for the purpose of this act," that's the context of the declaration under clause 3(3.1)(a), and then what in substance the tribunal is ordered to look at is basically whatever it thinks is necessary, to do what the act is intended to do.

If the tribunal thought, for whatever reason, this act was being avoided, not by any intention of an employer but just by the way the employer set up his or her business or the shareholders' business, do you see that provision as being broad enough, despite the fact that it may not fit within the other categories as being broad enough, to none the less give the tribunal the authority to say that it's related?

Ms Beall: You will note that after clause (b) the word "and" appears. That means you have to fit all three tests in order for the tribunal to make a declaration of a single employer.

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Mr Harnick: Just very briefly, you indicated in your initial answer to me dealing with section 28.1 that the criteria here are different because the criteria are related to the concepts of employment equity as opposed to the concepts of labour relations. Why then is clause 3(3.1)(b) necessary? If we have a definition that relates specifically to employment equity as to when we call corporations related or associated with one another, why do we need the definition? Why do we need the extra rider dealing with the Labour Relations Act if that is not dealing with concepts of employment equity? I know that you want to throw the net as wide as you can so that if someone's related for the purposes of the Labour Relations Act, you want them also to be related for the purposes of employment equity. But aren't the concepts still different?

Ms Beall: The purpose of clause 3(3.1)(b) is that if there has already been a related employer declaration by the labour relations board under the Labour Relations Act, it won't be necessary to rehear the matter before the Employment Equity Tribunal. It will save on the cost and time of litigation for the parties involved.

Mr Harnick: But the concepts are different. One is an employment equity concept. That's what you told me. You said that for the purposes of employment equity we're dealing with different concepts. One is for labour relations; we're not dealing with labour relations in the employment equity area. It may be one thing to save costs, but if the concepts are two different things, aren't you taking away from an employer an opportunity in an area that may be of a totally different concept, based on your description? Aren't you taking away a right from that employer if it's already been deemed or if he and another associated company are already deemed associated under the Labour Relations Act?

Here you're dealing with a totally different concept. An employer may have a very good argument under different concepts that were not related. They may be related for the purposes of the Labour Relations Act but not for the purposes of employment equity, if the test is different, and you've specifically made that test different. So shouldn't you delete clause 3(3.1)(b) if your answer is to be consistent?

I appreciate the necessity of making sure that you try and keep everybody's costs at a minimum, but can you really afford to take rights away from somebody in the name of costs?

Mr Scott Bromm: Just to add to what Ms Beall was already saying, the section itself isn't put in there merely for administrative efficiency but also because once the Labour Relations Act has made a determination that there will be a related employer, then that bargaining agent will be determining the employment policies and practices for that entire workplace for collective bargaining purposes under the single collective agreement. Therefore, it becomes appropriate to ensure that the bargaining agent is being recognized for employment equity purposes in the same context for the same employer and under the same umbrella of employment policies and practices. In effect, once the labour relations board has made a determination, it is in fact meeting the criteria of clause 28.1(3)(b), because the board has determined that the bargaining agent will be the one determining with the employer the policies and practices for the entire workplace.

Mr Harnick: If that's the case, why do we need this new definition that is only --

Mr Bromm: Sorry; the new definition includes workplaces that have not had a determination under the Labour Relations Act.

Mr Harnick: Why don't we have the same criteria? Why are some businesses caught under one set of criteria and some under the other? If you're caught under (b), you have no argument to make because you're already caught under (b) in another proceeding for a totally unrelated matter, labour relations versus employment equity, and we've been told today that they're two different concepts, you've already had a determination made under labour relations. So now somebody who doesn't fall within the Labour Relations Act gets an opportunity to have a hearing or an application to argue why (a), (b) and (c) in subsection 28.1(3) shouldn't apply, but the other person automatically is fixed and the criteria are different for employers. It's not fair.

Mr Bromm: The reason why it operates that way is because once a determination has been made for labour relations purposes that there is a related employer, then it is appropriate for that to continue in the employment equity context.

Mr Harnick: But they're two different --

Mr Bromm: But it still recognizes the fact that there are two different contexts. Just because the labour relations determination may not have been made, it may still be appropriate for employment equity purposes.

Mr Harnick: See, I don't understand something. You're telling me that there's a relationship between labour relations and employment equity when it comes to dealing with whether companies are associated or related. Your colleague is telling me they're two different concepts. I don't understand. Just tell me.

It's not for you, really; it's for Mr Fletcher. Just tell me the honest answer, that you're trying to throw the net as widely as you can. If that's the answer, I'll accept it. On Mr Fletcher's left-hand side you get one answer and on Mr Fletcher's right-hand side you get another answer. One says labour relations concepts don't relate to employment equity concepts and one says employment equity concepts and labour relations concepts are related when it comes to associate companies.

Look, if the answer is that you want to throw the net as wide as you can and that's the policy of the government, have Mr Fletcher tell me that. I'll accept that. Just tell him to put it on the record and let's move on.

Mr Fletcher: I won't be casting my net. You never know what suckers you'll catch.

It's obvious that under the Ontario Labour Relations Act that's for bargaining agents and related employers; it's for the bargaining agents so that they can get their certification when they negotiate. Under employment equity, it's something that's a little bit different. There are a lot of employers who, because they are non-union, would not have had the tribunal to explain whether or not they are related.

Mr Harnick: Why do you have to have different criteria for companies under employment equity as to whether they're related or they're not related? Why are some under standards set by the Labour Relations Act and why are some under standards set by the Employment Equity Act? Look, there's no shame in saying you want it as broad as you possibly can.

Mr Fletcher: That's what you're saying; that's not what we're saying.

Mr Harnick: Well, no, it is --

Mr Fletcher: We've given you reasons and you just don't want to accept the reasons.

Mr Harnick: No, I don't understand the reasons. I don't understand the reasons because the reasons contradict one another. Just put it on the record, "We want to do it as widely as we can and then we won't have anyone who could be deemed a related or associated employer not deemed so."

Mr Fletcher: That's not the purpose of this.

Mr Harnick: Well, it is the purpose unless you can get your colleagues to explain to me why there's that contradiction.

The Chair: I think Mr Fletcher has answered and others have answered. Ms Alboim, do you want to try as well?

Ms Alboim: No.

Mr Harnick: It's a policy matter that has nothing to do with anybody but the political people. What is the purpose of making this as broad as you possibly can?

The Chair: Ms Alboim, do you want to try again as well?

Ms Alboim: There are several objectives that this motion deals with. One is to ensure that workplaces that are not unionized can in fact be looked at, whereas the previous motion only dealt with those workplaces that did have bargaining agents in them. That was purpose number one.

Purpose number two was to allow for the Employment Equity Tribunal to have criteria that make sense in terms of the implementation of employment equity to assist it in determining whether there is a related employer.

That being said, it was also felt to be important that in regard to the determination made by another board, ie, the Ontario Labour Relations Board under the OLRA which has the responsibility of making a determination on relatedness, its decisions, because they pertain to areas that are similar in terms of employment practices for labour relations purposes and for collective bargaining purposes, those rulings should continue to be upheld and there should not be a requirement for related employers, which have so been determined by the labour relations board, to have to go through another test or another assessment for employment equity purposes.

It was to recognize determinations made under the OLRA by the OLRB for organized workplaces, and to provide an alternative mechanism for those workplaces that do not have a relationship to the OLRA because there is no bargaining agent in that workplace, to provide an opportunity for a determination of relatedness to be made under the proper mechanism, which in this case for employment equity purposes is the Employment Equity Tribunal.

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Mr Harnick: Can I ask the minister, do you think it's fair that someone who has been deemed to be a related employer under the Ontario Labour Relations Act can't apply the criteria that are specifically designed for employment equity purposes, which is really what this bill is about? Do you think it's fair that this employer will not have an opportunity to deal specifically with those items that have been designed for employment equity purposes and is automatically deemed to be a related company under the Labour Relations Act?

You're taking a right away from that employer or those employers to apply the actual criteria that were designed for employment equity purposes. Do you think that's fair?

Hon Ms Ziemba: First of all, you're asking a lot of things wrapped into one. What I'd like to answer you back, if you'll bear with me because I don't want to be interrupted, is that before this amendment was brought forward we discussed it with many employers, many employer groups, many unionized labour groups and organizations, and other interested parties in this particular area, and they all feel that these are the criteria we should follow. It was not done in a hasty moment of the day; it was done with a lot of consultation and with a lot of input from all our stakeholder groups.

The Chair: There are no further speakers. I think we've had sufficient discussion on this matter. We're ready for the vote.

All in favour of subsection 3(3.1)? Opposed? That amendment carries.

The next amendment is from Mr Murphy. I think everybody has it, Mr Murphy. Do you want to read it?

Mr Murphy: I asked the clerk to distribute a handwritten sheet. I'll just read it and then go to discussion.

A new subsection 3(5): "Nothing in this act shall require an employer to exclude from consideration for recruitment, hiring, treatment, retention and promotion any person other than a member of a designated group."

If I can speak to it, if I can make one amendment to my own, I think instead of "and promotion" it should probably say "or promotion."

This amendment arises out of the ad that was placed in Job Mart about which much discussion has been had in the House and in the media over the last few days, which said, "This competition is limited to the following employment equity designated groups," and then lists the groups, "aboriginal peoples, francophones, persons with disabilities, racial minorities and women."

The intention of this is to prohibit exactly this kind of procedure from being chosen by an employer or forced upon an employer.

I think we've had many discussions in this committee with the members opposite and the parliamentary assistant about the issue of selling employment equity, of making sure it's palatable to the people of this province, and one of the things we certainly said was that you had to make it something that was inclusive and not exclusive. I can't think of a thing that was more damaging to employment equity than the ad that was put in Job Mart in terms of making it a palatable thing that the people of this province can accept. What this is meant to do is to prohibit exactly that kind of thing and to send the message to the people in this province that employment equity is not intended to create new barriers but to remove barriers to participation.

I hope I can get the support of the government. I'm glad to see the minister here because I too, as Mr Harnick referred to earlier, was in the House when I heard the Premier say that he found provisions which excluded people from application objectionable. All I am doing is putting his words into a motion. As you'll see, the wording is quite carefully chosen. It doesn't say you exclude them from recruitment or you exclude them from consideration. So you have to consider; they have to be part of the group that's considered, and at the end you hire, hopefully, the best person for the job, with a view to complying with the other provisions in the Employment Equity Act in whatever form.

This is meant to put the Premier's own words in legislative format, to apply it to this bill. I hope we can see the members of the committee and the parliamentary assistant and the minister agreeing with their own Premier and supporting this provision.

Mr Mills: Unless I'm missing the point, and that's quite possible, subsection 1(1) of the Employment Equity Act says, "All people are entitled to equal treatment in employment in accordance with the Human Rights Code." Isn't that covered there, this problem that you have, Tim? I'd like to know the arguments on why that isn't in there from somebody.

Mr Murphy: Sure, I'm happy to respond to it. As you'll know, the Human Rights Code has a provision to allow certain measures to be taken in order to advance people, so things that you would not otherwise be allowed to do are allowed under that provision in the Human Rights Code.

This would prevent exclusion from consideration of certain people, so that you have at the table people from all groups. In the circumstance where persons of equal ability come to the table and are hired and considered, if we have a designated group member and a non-designated group member, employment equity would say you should hire the designated group member, but that you don't exclude from coming to that point any person other than a designated group member. It's to make it clear that as a matter of policy and practice that kind of provision is excluded, and I don't think the reference to the Human Rights Code does it.

Mr Mills: I wonder, to follow up on that -- I've heard that point of view -- if it would be helpful to hear the point of view of the minister or the deputy.

Hon Ms Ziemba: I'd like to respond. First of all, this is in contravention of the Human Rights Code, as I see it. Secondly, I'd like to really clearly define for you the words that you're using, which are very broad: "recruitment," "hiring," "treatment."

"Recruitment" would mean that --

Mr Murphy: That's your own amendment; that's your own term.

Hon Ms Ziemba: Yes, it's our own words, but you have twisted them around in your amendment, "to exclude from consideration for recruitment," which means that if an employer were to want to advertise in a special measure, would want to recruit from special places rather than mainstream type of media, but would want to recruit from advocacy agencies or from other places, they would not be able to do that because you've excluded them from doing that.

"Treatment" would also include measures such as mentoring, job sharing, the types of job shadowing that employers and employees might come to an agreement to do so that they could have a better understanding of what the job is all about and to get the training they would need. What you have done with this particular motion has excluded employers and employees who would be working together on positive measures from being able to implement some of these special measures which could be very positive for employment measures.

If I might just say, I think if you would read this very carefully, and again go back to the Human Rights Code where positive, supportive measures are included for designated group members, this is taking that away from the code. Our act cannot amend the code by the back door.

Mr Murphy: That's a deliberately perverse interpretation of this position.

Mr Harnick: I can't see, in reading this proposed amendment, that this says anything other than the fact that no one shall be not eligible to be considered for any job that might be available. It means that anybody can come along and be considered for any recruitment, hiring, treatment, retention or promotion. What could be less benign than that?

The Chair: It's 6 o'clock on the hour. As the House adjourns, we adjourn as well. We will adjourn until tomorrow at 3:30.

The committee adjourned at 1801.