Evidence of meeting #45 for Status of Women in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was harassment.
A video is available from Parliament.
October 23rd, 2012 / 9:45 a.m.
Conservative
Stella Ambler Conservative Mississauga South, ON
I have a short point of order, Madam Chair.
Through you, Madam Chair, I would like to ask Madam MacPherson a question.
When you're providing the follow-up information that you talked about earlier, perahps you could give us a bit more information. I felt that after Ms. Bateman was talking about the under-reporting, you had a little more to say. That's something we might want to hear a bit more about. When you're providing us the other data, would you mind—
9:45 a.m.
Conservative
9:45 a.m.
NDP
The Chair NDP Marie-Claude Morin
It's not a point of order.
If I understand correctly, you want more information.
9:45 a.m.
Conservative
Stella Ambler Conservative Mississauga South, ON
Yes, a little more information on the under-reporting, as well as the other information if possible. It sounded as though she had more to say about that. We want to hear more about that, if you don't mind.
9:45 a.m.
Chairperson, Canada Industrial Relations Board
Certainly. I would be happy to do that, Madam Chair.
9:45 a.m.
NDP
The Chair NDP Marie-Claude Morin
Thank you very much.
We are going to suspend the hearing while we change witnesses.
9:50 a.m.
NDP
The Chair NDP Marie-Claude Morin
We shall resume our hearing with our second group of witnesses.
First I would like to welcome our two witnesses, Mr. Christopher Rootham, Partner and Director of Research Labour Law and Employment Law Groups. We also welcome Mr. Steven Gaon, who will be presenting as an individual.
Welcome to everyone. You will each have 10 minutes at your disposal and afterwards we will have a question period.
We will begin with Mr. Rootham.
Mr. Rootham, you have 10 minutes.
9:50 a.m.
Christopher Rootham Partner and Director of Research, Labour Law and Employment Law Groups, Nelligan O'Brien Payne
Thank you very much.
By way of introduction, my name is Christopher Rootham. I've been practising labour and employment law in the private sector for approximately 10 years. I'm also a lecturer and professor of labour law at Queen's and the University of Ottawa. I've written extensively about human rights, labour and employment law, particularly with an emphasis on the federal public service. I would like to confine my introductory remarks to dealing with the question of recourse available to the victims of sexual harassment within the public service.
In my view, there are five essential characteristics of an effective system of recourse. It must be expeditious, because justice delayed is justice denied. It must be procedurally fair, including the opportunity to be heard by an impartial decision-maker. There must be expertise by the decision-maker. There should be broad acceptance of that decision-maker within the community. There should be effective redress at the end of that recourse mechanism—can the system right the wrong?
In the federal public service there are at least five different systems of recourse that could be used by a victim of sexual harassment, depending on the circumstances of that harassment. A victim could file a sexual harassment complaint by policy, either Treasury Board's policy or a policy in place at a separate agency or separate employer. The victim could file a grievance under the Public Service Labour Relations Act. The victim could file a complaint with the Public Service Staffing Tribunal or the Public Service Commission, if the complaint refers to sexual harassment in an appointment process in the core public administration. A victim could file a complaint with the Public Sector Integrity Commissioner or with the Canadian Human Rights Commission.
The first difficulty with this system is the sheer number of different recourse mechanisms available. This leads to confusion, overlap of functions, and inefficiencies because of duplication, or alternatively, passing the buck, as victims are passed from jurisdiction to jurisdiction in an effort to find someone who will take control or take jurisdiction over their matter.
There are also difficulties within or about each of the particular systems. With respect to a sexual harassment complaint, there are three difficulties I'd like to bring to your attention. First, a sexual harassment complaint is not available to the victims of harassment if they have already grieved or attempted to use some other method of recourse. Second, there's no requirement under the policy to provide redress to the victim. The policy talks about corrective measures to address what to do with the perpetrators of the harassment, but not to talk about what to do for the victims. Third and finally, there's no requirement that the deputy head or the deputy minister agree with or implement the recommendations of the investigator.
With respect to the grievance system, there are two categories of grievances in the federal public service: grievances that can be referred to adjudication, which is independent third party resolution; and grievances that cannot be referred to adjudication, which are finally decided by the deputy head or his or her delegate.
Grievances can be referred to adjudication if they are about discipline or if they are about collective agreement violations. For those employees who are represented by a bargaining agent who has successfully negotiated a sexual harassment clause into their collective agreement, the grievance may be referred to adjudication. The grievances of unrepresented employees or employees whose bargaining agents have not negotiated sexual harassment clauses are finally decided by the deputy minister alone.
If the matter is not referred to adjudication, this is not a truly impartial hearing for unrepresented employees or for certain represented employees, particularly with respect to the remedy. Is a deputy head expected to award damages to the victims of sexual harassment or career assistance that costs money, or other remedies with a financial consequence when this money is going to be taken out of their budget for other priorities? Further, deputy heads have no expertise in assessing damages. They have no expertise in adjudicating. Their expertise is in management, in program administration; it's not in remedying the effects of sexual harassment.
Another category of recourse is to the Public Service Staffing Tribunal or the Public Service Commission. This deals with only a limited number of cases, if the harassment occurred in the context of an appointment process to the core public administration, to Treasury Board. There are limited remedies in that case, because the complaint is only about that staffing action.
A victim could file a complaint with the Public Sector Integrity Commissioner. However, the Public Servants Disclosure Protection Act permits the commissioner to refuse to investigate a complaint of sexual harassment on the grounds that there is another method of recourse available. Frankly, we're in early days with the Public Sector Integrity Commissioner in terms of learning how they're going to deal with complaints of sexual harassment. We simply don't know if that is going to be an effective recourse.
Finally, a federal public servant could file a complaint with the Canadian Human Rights Commission. The Canadian Human Rights Commission, as you're aware, is a gateway to get to a tribunal. The commission does not make decisions. The commission screens complaints. Only approximately 9% of cases or complaints filed with the commission make their way to a tribunal.
The commission can refuse to refer a complaint of sexual harassment to the tribunal for a number of reasons. One of them is that paragraph 41(1)(a) of the Canadian Human Rights Act permits the commission to refuse to investigate a complaint on the grounds that it should be dealt with in another method of recourse. Both legally and experientially, I can tell you that the commission routinely refuses to investigate complaints of sexual harassment in the federal public service because those victims should be going to grievance or through Treasury Board's harassment policy.
Also, the commission can refuse to refer a complaint to the tribunal if, in its opinion, an offer to settle has been made to the victim and the victim should have accepted it. This is a valid complaint where the commission concludes there is merit to the complaint, and yet the commission refuses to allow it to proceed to the tribunal. This instead forces the complainant to accept a settlement.
The Canadian Human Rights Commission can be slow in many cases. It takes an average of nine months for the commission to investigate its complaints. That does not include the complaints that are dismissed expeditiously because they're in the wrong forum or wrong jurisdiction, or they should go to another forum. The complaints that are valid often take longer than nine months to investigate. That does not take into account the fact that if the result of the investigation by the Canadian Human Rights Commission is that the matter is referred to a tribunal, you're looking at another nine to ten months in order to complete a hearing in front of the tribunal.
Finally, the human rights system has the authority to grant substantial remedies for the victims of harassment, but there is one hole in that legislation; namely, that the Canadian Human Rights Tribunal has no jurisdiction to award legal costs to a victim of harassment. That was set out in the Supreme Court of Canada decision in Mowat, which involved an employee who was sexually harassed in the workplace. The tribunal awarded her $4,000 in damages, but that did not go anywhere near to meeting the legal expenses she incurred, because she retained private counsel.
The concern is that victims are not accessing these particular forms of recourse because of the flaws in them, because there's no true remedy at the end of the day, and because the expenses of pursuing the matter would outweigh any possible recovery.
In conclusion, I suggest that one way to protect the victims of sexual harassment would be to carefully examine the systems of recourse to ensure that there is expeditious, effective, and fair recourse available to the victims of sexual harassment.
10 a.m.
NDP
The Chair NDP Marie-Claude Morin
Thank you very much, Mr. Rootham.
I will now give the floor to Mr. Gaon, who will have 10 minutes, but first I'd like to say that I have Mr. Gaon's speaking notes here, but they are in English only. They are currently being translated. Once they have been translated, they will be distributed to the members of the committee.
10 a.m.
Conservative
Joyce Bateman Conservative Winnipeg South Centre, MB
Madam Chair, will these speaking notes be distributed after they have been translated?
10 a.m.
Conservative
Joyce Bateman Conservative Winnipeg South Centre, MB
Thank you. I am asking because this is a very important witness.
10 a.m.
NDP
The Chair NDP Marie-Claude Morin
Yes, quite so. Thank you, Ms. Bateman.
Mr. Gaon, you may begin. You have 10 minutes.
10 a.m.
Steven Gaon As an Individual
Thank you.
In the time allotted what I would like to do is confine my remarks to three general areas. First, I'd like to speak about where I fit into this process of sexual harassment prevention and resolution. Second, I'd like to speak very briefly about the Treasury Board of Canada’s new harassment policy and highlight some differences I see in comparison with the old policy. Third, I have some practical experience and some issues I'd like to bring to your attention and perhaps provide some advice for the future by way of concluding remarks.
First of all, I will start with a brief description of who I am and how I fit in. I am a lawyer by training and experience. I was called to the Bar of Ontario in 1989. I had a traditional law practice in the past, but I no longer have a traditional law practice. It now consists almost exclusively of alternative dispute resolution, or what we call ADR. This consists of mediation, arbitration, workplace facilitation, and investigation work.
I am regularly called upon to investigate harassment complaints within federal government departments, agencies, boards, and tribunals. I have investigated wrongdoing, including sexual harassment, by lower level employees,all the way up to some of the highest levels in the public service and its related organizations. In other words, I fit in near the end of the process. Once the complaint has been submitted and vetted by human resources officials, once the parties have been notified, once there is a level of dysfunction already in the workplace, and once informal resolution has failed, that’s when I come in. My perspective is somewhat narrow. It is not that of a theorist or academic; it's that of a practitioner.
My investigation work is typically carried out pursuant to organizational harassment policies, most often the Treasury Board policy. As the committee now knows from hearing from Treasury Board officials, the Treasury Board just released its new harassment policy, “Policy on Harassment Prevention and Resolution”, which was made effective October 1, 2012. This replaces the old policy, which had not been revised since 2001. They are similar, but there are some notable differences. As you will see, the name change reflects one of the key features of this new policy.
The formation of this new policy was no doubt a major undertaking and a positive development, in my view, to deal with harassment in the workplace. There are a number of documents and guides which I understand are still under development. I think we all need to see how the policy is applied in practice before we pass judgment on its effectiveness.
Let's start with the new policy versus the old policy. Like most of you, I have not had a chance to do an extensive review, but I have looked at it as carefully as I could have within the last few days. A number of related documents, as I said earlier, still have yet to be released. I will highlight a couple of key features.
One item is scope. The new policy specifically includes harassment outside the workplace, including travel locations, conferences, training, and informational sessions. As long as these outside locations are related to the workplace, a harassment complaint can be made.
Another is the harassment definition. The difference between the old and new definition is the idea that harassment can take place outside the traditional workplace. Finally and importantly, with respect to the new harassment definition, there used to be guides contained right in the definition itself with respect to what may or may not constitute harassment. Those are no longer there. Those may come out with some of these guides and other documents, as I indicated that Treasury Board is currently working on, but I don't see them in the current harassment definition. I don't think that's a critical problem. However, it was certainly useful to enable investigators and the parties to a harassment complaint to get a better understanding of what is inside and outside the lines of harassment.
Manager's obligations is the third key feature that I see as a difference between the old and new policy. Again, this may show up in some of the further documents that Treasury Board is developing.
The old policy had a section entitled “Expectations”. It discussed the expectations placed upon employees, parties to the harassment complaint, and managers. This, as I said, apparently no longer exists. One of the main features of this, which I had relied on a number of times in doing my work, was an obligation on the part of the manager to independently authorize an investigation where the manager becomes aware of alleged harassment in the absence of a formal complaint.
By way of example, I have investigated a matter involving sexual harassment where the manager was accused of failing to intervene even though there was no complaint filed. I determined in that case that there had been a failure by the manager to sufficiently act upon the allegations. I hope and expect there will be a way to authorize investigations independently in the absence of a harassment complaint, and that obligation or that capacity will be given to the manager or the delegated manager.
Currently, the new policy seems more focused on the responsibilities of the deputy head, as I read it, rather than those of the individual manager. Again, we do need to suspend judgment until some of these other documents are released.
I can bring some practical concerns and issues to your attention. As I said, I'm not a theorist or an academic. I do quite a bit of teaching, and I've certainly spoken on harassment a number of times. I don't bring to you statistics; I bring practical experience. The vast majority of investigations that I've performed have involved harassment in the form of misconduct or abuse of authority, but not sexual harassment. There have only been a handful of those. Why is this? Are there simply fewer cases of sexual harassment than we imagine? Are we now in an improved society where people better understand what sexual harassment is and how to better comport themselves in the workplace, or is sexual harassment under-reported? My answer is it's a bit of both.
I cannot give you statistics, as I said, but I can tell you that based on the cases that I've investigated, incidents of sexual harassment in my view are probably under-reported. I can think of two major investigations that I undertook that provided me with some insight into this problem.
One case involved the alleged failure of a senior manager to intervene—I mentioned this earlier—when the manager became aware of potential harassment in the workplace. A number of women were subjected to alleged sexual harassment by an employee who was under that manager's direction. None of the women filed complaints. What surprised me, frankly, was that based on the evidence that I gathered, it was obvious to me that each was fearful of the employee's close relationship with that senior manager. No one wanted to make waves. None of the women, in my view, wanted to be ostracized or have their careers adversely affected.
Another case involved sexually inappropriate remarks and physical touching alleged against a senior male official by a female colleague who was essentially at the same seniority level. She, too, would not file a complaint. Instead, she reported her concerns to management, which appropriately authorized an investigation. I did that investigation. She was adamantly opposed, and this surprised me. I was surprised to learn how fearful she was to come forward even though this colleague was effectively at the same level. What also astounded me was that during the course of my interviews, including interviews with some senior women who also worked in the same office, they too experienced unwanted sexual advances and touching by the same individual. There were others I found out about through hearsay evidence who also experienced this. None of these people came forward. Every one of them was reluctant to come forward.
I said at the beginning of this process that I come in near the end. What this tells me about sexual harassment, just from anecdotal experience, is that it often goes unreported and unchecked, notwithstanding the existence of good policy, and notwithstanding the existence of good managers. At the very end of the process, management has to decide what to do once there is a sexual harassment complaint that has been founded. As I alluded to earlier, there are cases where the manager has inadequately dealt with the situation. I believe that too often there is an ineffectual follow-up once the investigation is completed.
I know this committee is concerned with recent allegations of sexual harassment within the RCMP. I've looked at the RCMP policy. I undertook an investigation, which did not involve sexual harassment but involved alleged harassment against some RCMP officers. I think they have a good policy. The policy that I have with me today is from 2008. It's actually much more specific and broader than the Treasury Board policy. It creates some really compelling obligations on management, on the employees, and on the parties to an investigation. Yet apparently we still have problems. As I said earlier, you can have good policy, good managers, and still have problems.
10:10 a.m.
As an Individual
I could make some concluding remarks if you like.
I'd like to leave you with three main points.
First, there needs to be better education and training in federal workplaces on the issue of harassment in general and sexual harassment in particular. In general, people need to better understand that unsolicited and unwanted sexual advances are not acceptable. People also need to know that they can safely bring forward their complaints without fear of retaliation or adverse impact on their careers.
Second, we need to make sure that managers can and should independently authorize investigations where the situations warrant it in the absence of formal complaint.
Third, where serious allegations of sexual harassment are proven to be founded, there needs to be an effective follow-up by way of action in restoring the workplace and consequences for those who have breached the policy.
10:10 a.m.
NDP
The Chair NDP Marie-Claude Morin
Thank you very much. That was very interesting.
Before we have our question period, I would like to make a clarification. Some members of the committee feel the need—and I find this very relevant—to share with the public the fact that sexual harassment does not always involve a situation where a man harasses a woman. A woman can also harass a man. We wanted to make that clarification for the general public. There you go, now that has been said.
We will now have our question period.
Ms. O'Neill Gordon, you have seven minutes.
10:10 a.m.
Conservative
Tilly O'Neill-Gordon Conservative Miramichi, NB
Thank you, Madam Chair, and my thanks to the witnesses for being with us today. You certainly gave us lots of interesting facts that we are glad to have for our study.
What can you tell us about how the federal workplace fares in comparison with the broader Canadian workplace? You have lots of practical experience in different areas beyond the federal workplace. I'm wondering how this compares with the broader workplace in regard to frequency of sexual harassment and how complaints are addressed within and beyond the federal area.
10:10 a.m.
As an Individual
I can tell you that I think the federal and provincial governments have been incredibly progressive in bringing in harassment policies and legislation. It's almost as though it doesn't exist in the private sector. You rarely see sexual harassment complaints. In fact, you rarely see harassment complaints of any kind, and when you do see them my experience is they're not generally dealt with adequately.