Evidence of meeting #91 for Human Resources, Skills and Social Development and the Status of Persons with Disabilities in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was complaint.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Jason Godin  Union Representative, Confédération des syndicats nationaux
Sandy Hershcovis  Associate Professor, University of Calgary, As an Individual
Manon Poirier  Director General, Ordre des conseillers en ressources humaines agréés, Chartered Professionals in Human Resources Canada
Caroline Senneville  Vice-President, Confédération des syndicats nationaux
Catherine Ebbs  Chairperson, Federal Public Sector Labour Relations and Employment Board
Virginia Adamson  Executive Director and General Counsel, Federal Public Sector Labour Relations and Employment Board

4:50 p.m.

NDP

Karine Trudel NDP Jonquière, QC

Could you please tell us about the definition, and Ms. Senneville could address this issue later. My colleague talked about it. I think we need a framework, and it should be included in the act. I know you mentioned it a bit, but I would like us to go further. The minister said that the definition should be broad, but to be able to provide training and prevention, there has to be a definition. I would like to hear your point of view on that.

4:50 p.m.

Associate Professor, University of Calgary, As an Individual

Dr. Sandy Hershcovis

In my brief I did give some specific examples of what you could use. I do agree that it should be broad. Manon spoke briefly about the performance management issues, and how some employees can perceive performance management as harassment. I do agree with her that it needs to be clear. At the same time, as someone already pointed out, some of those behaviours themselves, when they're done over and over, when they're done inappropriately, are in fact harassment. There's a fine line between those, which is why I think the definition needs to be brief.

I think including within the definition the idea that it can occur beyond organizational space and time boundaries is really important. We see a lot of online social media bullying that happens between employees. We see it happening on research sites, so it's often not within the organization, and it's not even necessarily about work. It could be between employees, if someone has a personal problem with another employee. It's not work-related, but it's still considered to be bullying. I definitely think it needs to be broad.

Including the term “ought reasonably be known to be unwelcome” or “to cause harm”, something like that, where the reasonable person test is included in the definition I think can give it that breadth that you need.

In terms of sexual harassment, as I mentioned, I would like to see in the definition those three different behaviours: “unwanted and unreciprocated” or “offensive romantic expressions or unwanted attention”, “bribes or threats that make circumstances of a worker's employment or advancement contingent on sexual co-operation”. That third component, which isn't currently in the Canada Labour Code, “insulting or hostile or degrading attitudes about a worker's gender” is something that I think needs to be added because it's so frequent and so common. I think it may be somewhat covered in the discrimination part of the law, but I think also incorporating it as part of sexual harassment, because it's so prevalent, would be helpful.

4:55 p.m.

Liberal

The Chair Liberal Bryan May

Thank you very much.

MP Morrissey, go ahead for six minutes.

February 28th, 2018 / 4:55 p.m.

Liberal

Bobby Morrissey Liberal Egmont, PE

Thank you, Chair.

One of the issues on which there seems to be a growing consensus, regardless of who has been appearing before the committee, is having a clear definition of harassment. Then there's a bit of a difference of opinion about whether that clear definition should be enshrined in the legislation or in the regulation, the difference being a general definition in legislation and a more detailed one in regulation.

I would like a brief comment from each of you on what your opinion is on that.

4:55 p.m.

Vice-President, Confédération des syndicats nationaux

Caroline Senneville

It is clear to me that it absolutely must be in the act. Indeed, everything in the act will stem from the definition. For us, this cornerstone must really be in the act. Since regulations are easily modifiable, if the political will changes, we could play with the definition and lose much of the meaning that the act had at the beginning.

If the legislator's objective is to forcefully express that there should be no harassment or violence in the workplace, we must start by including a clear and broad definition in the act.

4:55 p.m.

Liberal

Bobby Morrissey Liberal Egmont, PE

Would anybody else like to comment?

4:55 p.m.

Associate Professor, University of Calgary, As an Individual

Dr. Sandy Hershcovis

I would agree with Caroline that regulations can change, and depending on who's in government, that can change quite quickly. I think it has to be in the act.

4:55 p.m.

Director General, Ordre des conseillers en ressources humaines agréés, Chartered Professionals in Human Resources Canada

Manon Poirier

I would also support that.

4:55 p.m.

Liberal

Bobby Morrissey Liberal Egmont, PE

Madam Ebbs.

4:55 p.m.

Chairperson, Federal Public Sector Labour Relations and Employment Board

Catherine Ebbs

As neutral decision-makers, our position would be that this is a decision for the government to make. Whatever it is, our job will be to interpret and apply it.

4:55 p.m.

Liberal

Bobby Morrissey Liberal Egmont, PE

That's fair.

Mr. Godin.

4:55 p.m.

Union Representative, Confédération des syndicats nationaux

Jason Godin

I would echo the comments of my colleague to ensure that it's enshrined in the act itself. As she pointed out earlier, a change in government could mean a change to the regulations. It has to be enshrined there, and it has to be very, very clear. That's laid out in our recommendations.

4:55 p.m.

Liberal

Bobby Morrissey Liberal Egmont, PE

My second question is for each of the witnesses.

Would the bill as it's currently written, and you've all reviewed it, be an improvement for employees currently facing harassment in the workplace?

4:55 p.m.

Vice-President, Confédération des syndicats nationaux

4:55 p.m.

Liberal

Bobby Morrissey Liberal Egmont, PE

Good.

4:55 p.m.

Associate Professor, University of Calgary, As an Individual

Dr. Sandy Hershcovis

Yes, I agree.

Because there's this provision that an investigation has to happen, it makes it so that employees may be more likely to report, who wouldn't have reported because they feared they wouldn't be listened to, that nothing would be done about it, and they wouldn't be believed. Now they have to be believed, and I think that makes it more likely that they'll report.

5 p.m.

Director General, Ordre des conseillers en ressources humaines agréés, Chartered Professionals in Human Resources Canada

Manon Poirier

This is clearly an improvement. An investigation must be conducted when a complaint has been filed, but if no complaint has been filed, it is useless. In a small environment, sometimes the relationship with the supervisor is involved. Until it is clarified, if the harasser is the supervisor or boss, it will be ineffective. If it's clarified, it will be an improvement.

There is a desire in the bill to empower the entire workplace. The intention is that a person who has seen someone behave in a way that constitutes harassment must report it. This practice is healthy if the intention behind it is to empower the community. However, it can become dangerous. In fact, if the employer must systematically investigate a complaint, a culture of denunciation may develop. The number of investigations could be very cumbersome to manage. In short, if the intention is to empower witnesses in the workplace, that's fine, but things should not not be pushed to the extreme.

These are the only two reservations I have with respect to the bill as worded.

5 p.m.

Chairperson, Federal Public Sector Labour Relations and Employment Board

Catherine Ebbs

I believe yes, because it offers recourse to certain employees who didn't have it before.

5 p.m.

Liberal

Bobby Morrissey Liberal Egmont, PE

Thank you.

I have a question for Jason. I believe it was you who referenced that there's a major issue with internal complaint investigations. That was something we have heard a lot from witnesses over the last number of days. The smaller the workplace, the more difficult it is to ensure that an investigation is fair and transparent.

Could you elaborate a bit more on how we could address this more, to ensure that the individual making the complaint feels that the complaint was dealt with fairly internally?

5 p.m.

Liberal

The Chair Liberal Bryan May

Please respond in under 30 seconds, please.

5 p.m.

Union Representative, Confédération des syndicats nationaux

Jason Godin

The problem we have is that nobody has any confidence in the system. They don't feel there's any impartiality when we're talking about the internal complaints. That's why we're talking about having committee involvement and making sure we're involved in who's hearing these complaints.

In our system, the complaint is put in and it doesn't go anywhere. It goes to the supervisor, and then from there it gets lost in the wash and it's not impartial.

Again, it's going back to the internal mechanisms and ensuring that we're a part of that process and we're engaged in it. We're hoping that the individual will feel a lot more confident to come forward and put in the complaint and have it resolved. Many of our complaints go in and we don't hear anything and we don't know what the resolution is. Again, it's about making sure that the individuals have confidence in the system, that it's fair and impartial, and that their complaints will actually be heard.

5 p.m.

Liberal

The Chair Liberal Bryan May

Thank you very much.

Next, for six minutes, is MP Damoff, please.

5 p.m.

Liberal

Pam Damoff Liberal Oakville North—Burlington, ON

Jason, it's wonderful to see you again in a different committee.

My first question is probably for all of you.

I had a conversation with someone who has a fair bit of knowledge on harassment legislation and was talking about the fact that Saskatchewan has had legislation for quite some time, and its unfounded rate is about 55%. One of the issues is that the definition is too broad. It goes to what you were talking about, Ms. Poirier, in terms of what harassment is, so that definition is actually too broad. It's resulted that the majority of cases coming forward are determined unfounded.

I think if we're going to include a definition in our legislation, we need to make sure that we get it right, that it's not too descriptive but also not too broad. Do you have any examples of where we could look to a good definition that sort of accomplishes all of those?

5 p.m.

Vice-President, Confédération des syndicats nationaux

Caroline Senneville

I said during my presentation that Canada was a bit late. Sometimes there are advantages to being a bit late, because we can build on what has been done elsewhere. Quebec's Act Respecting Labour Standards contains elements concerning the definition. Federal legislation also contains elements. For example, the Charter contains prohibited grounds of discrimination such as race, sex, and so on.

It is important to look at what's in the labour laws. A sentence saying what is not harassment can even be included. For example, the exercise of the right to manage, when done well, is not harassment.

I would like to add that if, in Saskatchewan, it was found that half of the complaints were unfounded, that does not mean there is no problem.

5:05 p.m.

Liberal

Pam Damoff Liberal Oakville North—Burlington, ON

No, no, I'm not saying that.