Finance Committee on Nov. 6th, 2017

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Proposed subsection 206.7(3), under “Exception”, says:

An employee is not entitled to a leave of absence with respect to any act of family violence if the employee is charged with an offence related to that act or if it is probable, considering the circumstances, that the employee committed that act.

I understand the purpose of this. In cases of domestic violence, a person can say that they need time off because they hit their spouse. I understand that, but what about in the cases where it's not clear cut, where it's not perfectly obvious? Doesn't this put the supervisor, the employer, in an odd position in having to decide before the court decides if the person is guilty, not guilty, or guilty enough to not be able to take advantage of this leave section?

[Margaret Hill]

That's a very important question. I think you've zeroed in very quickly on why it's there. The main purpose of this leave is to provide people in untenable situations with support quickly. Being charged with an offence is dealt with through a formal legal or justice system exercise, and as you say, it can be timely. It can take much time.

Based on common law jurisprudence, an employer cannot take frivolous or vexatious allegations or hearsay, say, from a false accuser in making their decision about whether the employee is entitled to take the leave or not. In addition, the provision is very clear that the employer must consider the circumstances of the individual claiming the leave and assessing whether it's probable that the employee committed the offence. Probability at law is much more than just possibility, so the threshold is set quite high for denying the leave.

Again, as in the case of the leave for traditional indigenous practices, the risk that someone would take 10 unpaid days off is probably quite minimal.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Is there an appeal to this decision? Let's say I ask my employer for time off related to this and they say no, because they think I did it. Based on the circumstances, is there an appeal mechanism? The document is so disjointed sometimes it's hard to tell what you can and cannot do, considering there are other sections of the act that I don't have in front of me.

[Margaret Hill]

Yes. There are provisions elsewhere in the code that relate to challenging a decision, filing a complaint, and they would all apply to this particular leave. If someone claimed, for instance, they had been denied the leave unjustly, they could make a complaint to the labour program of the Government of Canada.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

You have in here in proposed subsection 206.7(5), “Documentation”. I see the same type of section is repeated in different ones. In the case of domestic violence with spouses involved, a lot of the documentation being requested could be either legal documents or really personal documentation.

I was a registrar for the HR profession in Alberta, and I would probably never counsel any of my members to request that type of documentation in their workplace, just because then you have to keep it either on paper in your office or as a digital copy, and there is the risk that somebody might find it or use it improperly. It says, “only if it is reasonably practicable for them to obtain and provide it”. It would obviously be easy for them to fight it because it would have it be legal documentation. It would be pictures.

Why have that section in here for the employer to request it? Could the person also appeal and say they didn't want to provide it because it's very personal?

[Margaret Hill]

It's very standard under the Canada leave provisions with respect to leaves that someone who is seeking leave indicates to their employer the purpose and the duration of the leave. In the particular case of family violence leave, under the proposed changes an employee would need to indicate that they wished to take this particular leave, and in proposed subsection 206.7(2), the specific reasons for which the leave can be taken are enumerated. Those are things like seeking medical attention or obtaining services from a victim support organization.

To be eligible for the leave, the employee needs to indicate the reasons. Nothing requires an employee to provide any more information. They just need to say they need to seek medical attention or they need to take their child to their family physician to seek medical attention.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

That would be the limit of what would need to be provided to satisfy that section?

[Margaret Hill]

Yes. That information would be part of the education, outreach, and awareness-raising that the labour program inspectors would do with workers and employers should these changes be implemented.

I'd like to highlight one other thing, and I think it's very relevant to this because you've identified a very important question around confidentiality. It's important to remember that federally regulated private sector employers are subject to the Personal Information Protection and Electronic Documents Act, known as PIPEDA to its friends.

Under the legislation, an employer must obtain an individual's consent when they collect, use, or disclose personal information. The business must provide assurance that the information will be protected by appropriate standards. The reason there aren't more details about this in the code is that this other legislation applies across the code, or at least with respect to part III.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

My colleague just showed me the section. It says, “The employer may, in writing and no later than 15 days after an employee’s return to work”.

[Margaret Hill]

Yes.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

I want to to understand the context under which you would ask for it after the fact. Usually when you ask for leave, you tell the employer the situation you're in, and now you have all these extra sections under which you could get unpaid leave. Why would you ask for it after the fact? Is it just for documentation purposes?

Going back to my time in human resources, I would think once I've given you your leave, why would I need to confirm that I made the right decision to give you the leave to start with? If I did that, I'd be stuck with all these personal documents that I now need to protect under PIPEDA and other provincial acts that regulate other portions of my business. I would rather not even ask for this information.

[Margaret Hill]

That's our understanding of what will happen based on our consultations. The emphasis on “after the return to work” is consistent with other leaves in the code. In particular, in the case of family violence, there are circumstances where a woman, man, or child needs immediate care, and the last thing they need to be worried about is providing appropriate documentation.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Okay.

[The Chair, Liberal, Wayne Easter]

We have one more questioner and I remind members that we have a hard stop at 6:30 because some members have to speak in the House. We will finish this section, and the only other time we have to finish these divisions is probably 5:15 to 5:45 on Wednesday night.

Mr. Fergus.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

Thank you very much.

During my time as a member of Parliament I've had the opportunity to meet with parents of children who are severely disabled. I noticed that there are no new dispositions that refer to them. Are there other dispositions in the law that refer to employees who have children with severe disabilities and who need to take off regular time to provide that basic duty of care?

[Margaret Hill]

During the consultations we held, we heard very powerful stories from groups representing people with disabilities, not just children. We heard from people with various kinds of illnesses that may be episodic and affect their ability to be in a workplace.

You are correct that there is nothing new in these changes, particularly with respect to children with disabilities. That being said, caring for children with disabilities or caring for other family members for other reasons is a fundamental principle of these proposed changes. Under the Canadian Human Rights Act, there are protections for employees who have family responsibilities, so there's also that avenue if they feel they are not able to agree with their employer on alternative work arrangements that allow them to look after their child, or an elderly parent, or to access family responsibility leave.

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I'll wrap it up there.

[The Chair, Liberal, Wayne Easter]

That should end this division. You'll have to come back again, Ms. Hill, for the economic action plan, which is another division. My apologies to those in the room who will have to come to before committee, I expect, on Wednesday night again.

Thank you, Mr. Gagnon and Ms. Hill.

The meeting is adjourned.