Human Resources Committee on Feb. 22nd, 2018

[Sheryl Johnson]

It's hard to avoid, because it happens all the time. That's why there's the exemption that should be in there with regard to good faith allegations being made. The exemption with regard to anything that's done by management as part of its proper management rights and doing its proper progressive discipline wouldn't be considered to be harassment.

You can't avoid the possibility that someone may make a complaint that they're being harassed, but that's why you investigate and that's why you decide on the appropriate manner of investigating. It may well be looking into the history and finding out that it really isn't a case of harassment, and then having it done there, without having to bring in a third party investigator in order to deal with the situation.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

I wonder if it raises some concerns in the parliamentary context, Ms. Johnson, if I could have your thoughts on this. Basically, it's the Minister of Labour's office that is involved in making those investigations, which could involve investigations into the offices of opposition MPs. It could theoretically involve her having to do an investigation into her own parliamentary office as well. Does that seem like—

[Sheryl Johnson]

That wouldn't be appropriate—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you.

[Sheryl Johnson]

—so in those contexts there should be flexibility built in. It should be an investigation done as is appropriate in the circumstances. I think that language should be in there in order to give it some flexibility with regard to what you do in the circumstances. In that context, it should be someone who is independent, is trained to do those kinds of investigations, and is completely neutral and impartial with regard to the process.

[The Chair, Liberal, Bryan May]

Thank you.

Go ahead, MP Fraser, please, for six minutes.

[Sean Fraser, Liberal, Central Nova, NS]

Thank you very much.

Over the course of the testimony, I think we're narrowing the number of issues on which there seem to be different perspectives. I sense that most people are pretty happy that this issue is being tackled, but it comes down to the details. One of the areas where I think the details are still controversial, to a limited degree, is how we ensure that there's integrity in the process, specifically on the issue of the role of the committees versus a more employer-driven process.

Mr. Hynes, I think you said that we shouldn't automatically default to an external third party investigation. I'm curious. I have just a few questions on this issue. It was your comment, I think, so why would the employer be the better first stop?

[Derrick Hynes]

When we first started talking about the issue of sexual harassment in the federal sector in a tripartite way and we were considering what the alternative ways forward were, one of the options presented by the government was to take this clause in part III of the Canada Labour Code and move it into part II, for a number of reasons, one of which was that it would broaden the scope of who that clause now is applied to.

One of the issues that percolated during that initial discussion was who should be involved in these investigations, and there was, I believe, a general recognition and acceptance at that table that sexual harassment complaints and sexual violence complaints were different, that there was a sensitivity around them that made them different from a typical violence complaint. I think what was generally agreed on at that table was that the number of people with access to that information throughout an investigation should be really tight, as tight as you can possibly make it. I think that really was the genesis of removing the workplace committee from the investigatory process.

That did not mean the workplace committee could not be involved in setting the policy, ensuring the policy is enforced properly, and dealing with any systemic issues of harassment in the workplace. What it meant was that in individual investigations there would not be a specific role for the committee. That doesn't mean that there wouldn't be a role for the union. The employee could go to their union rep to seek assistance and guidance, to file a grievance, and to go through the process.

That's kind of where that came from. I don't know if that answers your question.

[Sean Fraser, Liberal, Central Nova, NS]

Yes, it's very helpful.

I want to ask Ms. Johnson a similar question.

I noted the testimony in response to the questions by my colleague Mr. Genuis to the folks in the airline industry, who I think are still in the room here. They were essentially saying that this is a serious issue for them. I understand why, and you don't want the investigator to be the harasser. It makes no sense.

[Sheryl Johnson]

No.

[Sean Fraser, Liberal, Central Nova, NS]

Ms. Johnson, you suggested there's a process that I think you would have faith in, as long as there were a government backstop to ensure the investigation was done in a reasonable way.

Can you explain why that's the appropriate safeguard that both protects the privacy of everyone involved and also maintains integrity in the process?

[Sheryl Johnson]

What I was saying is that I agree there should be flexibility initially with regard to the workplace parties themselves being the ones to address the issue, to investigate it, and to try to resolve it. I think that is what's being reflected in the bill as it's currently drafted.

With regard to what my friend said about privacy requiring that the health and safety committee be kept out of those kinds of complaints, it is reflected in the bill. There are the exceptions with regard to sections 128 and 129 when you're talking about the investigations.

To me, having the parties own it and being committed to it is very important to the integrity of the process. However, when they aren't doing what they are supposed to do, and if the union or an individual employee is concerned that the employer has only gone through the motions with regard to the investigation, or the employer has had an inappropriate result, then you go to an independent third party as the safety valve. That's where the internal process hasn't worked.

[Sean Fraser, Liberal, Central Nova, NS]

Building on that, I want to create a system whereby we encourage people who have been harassed to come forward. If the option feels like you're going to not be given justice, I would understand why there would be a chilling effect and somebody may choose not to report.

You mentioned the idea of ensuring there is someone in a separate chain of command. I think it was our witnesses from Canada Post who suggested that they have an ombudsperson-type model for this kind of scenario.

Does the legislation need to be changed to accomplish this? If so, how so?

[Sheryl Johnson]

It does, because language as it's currently drafted says that the employee reports to their supervisor. That's too closed. You need to expand that to be the employer's supervisor, and then perhaps have a subsection saying that when the person involved in the allegations is the employer or the supervisor, then it's to be a neutral third party.

You can leave it flexible as to who that is, but it's for the employer and the workplace parties to think about who would be the appropriate person that people would feel comfortable coming forward to without fear of reprisal.

[Sean Fraser, Liberal, Central Nova, NS]

Excellent.

My final 30 seconds is on a different topic.

Mr. Hynes, you talked about the consultation to date and referred briefly to the regulation versus the legislation for the definition of harassment.

One of the things I have some concerns with is the inability of this committee, over the course of about eight hours, to properly consult all the stakeholders to make sure we get the definition correct.

Do you think a reason to get it right is by putting it into regulation so stakeholders can be properly consulted, both on the employer and on the union side?

[Derrick Hynes]

Yes, I think that is the most appropriate place to have that conversation. The experts, the stakeholders, can meet and go through what honestly is sometimes a painful process of fighting over words—ands and ors and buts—that matter at the end of the day. What we would end up with, I believe, is a solution that is mutually agreed to. We have language that is then embedded in regulations that literally have the force of law and that I believe accomplish a better result, and, to your point, we do that in the next few hours.

[The Chair, Liberal, Bryan May]

Thank you very much.

Go ahead, MP Harder, please, for five minutes.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you very much, Chair.

My first question is to Ms. Johnson.

You have made some excellent comments and observations with regard to the power of investigative work and where that's concentrated, I suppose you could say.

Once a report has been composed, an investigation has been completed, and there is a report, right now the legislation doesn't say that the report needs to make its way back to the complainant. Do you believe that would be a good addition to this piece of legislation, or do we leave the complainant out of it?

[Sheryl Johnson]

No, I don't think the report itself, especially if it's with regard to a sexual harassment situation.... You do as much as you possibly can, as an investigator, to make sure that the witnesses aren't identifiable either. To a certain extent, exposing the entire report undermines the commitment to confidentiality and other concerns you may have with regard to the process.

I think the results, as well as the implementation of what happens as a result of the results, should go to both the complainant and the respondent, but I don't think the report itself should be provided.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay. Thank you.

A competent person can be put in place to help work through the investigative process. Right now there's no definition of what would qualify a person as competent. Do you believe that should be added to this legislation?

[Sheryl Johnson]

I think it falls along the same line as what we were discussing with some of the other definitions. That might be better put in one of the regulations or....

“Competent” should mean someone who's had training, who's done it before. In Ontario some of it is built into the legislation. As an example, if it's going to be a private investigator, it has to be a licensed one, or a lawyer. Those things are given as examples. It says, “a competent person”, and then they give examples such as a licensed private investigator, but they don't specifically say it has to be this or that. I think you limit yourself too much if you put a very specific definition in the code itself.

[Rachael Thomas, Conservative, Lethbridge, AB]

Would you even caution against a general definition?

[Sheryl Johnson]

I think a general definition is a very good idea. I never caution against the general one. It's the specific one, saying it's limited to these set people, that would be problematic.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay. Thank you.

Mr. Hynes, this piece of legislation is interesting because it allows the department to conduct pilot projects to test the effectiveness of new rules or new regulations. It says in the legislative review that the purpose of a pilot program is to test new rules in a specific industry or region. Given that the federal government regulates businesses that operate across provincial borders, wouldn't this create a competitive disadvantage for one region or one industry over another?

[Derrick Hynes]

I don't think that's necessarily so. I think what that clause is trying to get at is examples whereby the department can try to learn ways of doing its work better. It wants to launch a pilot project around the way it, for example, ensures compliance under the act or the associated regulations. Unless that pilot project involved some onerous responsibility of reporting on the employer community, there might be a way of managing it in a way that has not much of an impact, but I think we'd have to negotiate that with the department as we moved forward.