Evidence of meeting #92 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 definition.
A recording is available from Parliament.
7:30 p.m.
Liberal
7:30 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you.
Thank you to all our witnesses. I have to say that it's wonderful to get witnesses who come with such very specific recommendations. It's helpful to all of us to have that, not just speaking in generalities, but giving us very specific recommendations.
I'll get to definitions in a minute. In the bill, it says competent persons. I have concerns that we should be adding the word “independent”, and I'd really like your comment on that. My concern is that someone may be competent, but they're not necessarily independent, so it could be someone within an organization who is competent to do the work, but they're not independent from the situation. I may be reading something into that. I'm not a lawyer, so I don't know if there's a legal definition of competent.
I'd love to hear from you all about what you think about adding the word “independent” in there.
7:30 p.m.
Co-Founder and Co-Managing Partner, Rubin Thomlinson LLP
I'd be happy to begin. First of all, I will say that I think “competent” should be clarified to make it clear that it is intended to mean trained and knowledgeable on the subject matter of the investigation.
As far as independence is concerned, I think the concern that I would have about independence is that, when I think what you're seeking is unbiased, I'd be worried that independence would suggest that, for some reason, organizations have to go external to the organization, because I don't think anybody internal is going to independent. Many investigations can be done very effectively by internal people who are trained and who are knowledgeable in the subject matter.
7:30 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
You suggest broadening the definition of competent—
7:30 p.m.
Co-Founder and Co-Managing Partner, Rubin Thomlinson LLP
—and then making clear that they need to be unbiased.
7:30 p.m.
Jennifer White Investigator and Trainer , Rubin Thomlinson LLP
I would add to that, if you don't like the word “unbiased”, “neutral” fits as well.
7:30 p.m.
Prof. Katherine Lippel
I believe the term is related to regulation 20 in the Canada Labour Code regulations, and that provides that the competent person has to be approved by all parties, so that by definition, if it's going to be a competent person, the complainant and the employer should approve the individual as such.
I don't practice in this domain—I don't practice at all, I'm just an academic—but what I've heard is that it works pretty well for the physical violence right now, which is the primary purview of that regulation. The person who is named has to be agreed upon by the target, by the employer who is supervising, and by the union, I would think, because if you have a health and safety committee, then that's part of that.
7:30 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I'm sorry. Which one did you say it was? Twenty...?
7:30 p.m.
Prof. Katherine Lippel
I'm sorry. I can't hear you.
7:30 p.m.
Liberal
7:30 p.m.
Prof. Katherine Lippel
It's in regulation 20. Currently under the Occupational Health and Safety Regulations, chapter XX, adopted in 2008, is on violence in the workplace. Physical violence in the workplace is clearly included in that regulation, as is psychological violence, since the Federal Court decided it was. It says it's included but it's only very recently—
7:30 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
I'm just going to stop you because I only have a minute and a half.
7:30 p.m.
Prof. Katherine Lippel
Sorry.
7:30 p.m.
Liberal
7:30 p.m.
Prof. Katherine Lippel
I'm saying that's where the language comes from.
7:30 p.m.
Prof. Katherine Lippel
No. Well, the thing is that I think what they refer to in Bill C-65 when they talk about competent persons is that there's a whole baggage of different persons interpreting the regulations.
7:35 p.m.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Does anyone else have anything to add to that?
In terms of definition, I've been told that if the definition is too broad, it can lead to too many unfounded cases. You want to make it fairly defined, but not so well defined that it doesn't cover everything. I don't know if you have any comment on that: if it's too broad, it can be misinterpreted, and if it's too defined, it could miss something.
Ms. Landry, were you shaking your head?
7:35 p.m.
Chief Commissioner, Canadian Human Rights Commission
I would add that, as regards human rights, which are quasi-constitutional, the definition has to be broad. If there is a definition, it must be open, and people must be able to identify with the act. If a person is the victim of harassment or violence, the important thing is for them to be able to identify with the act
If the definition is restrictive or exhaustive, there is a risk that this could result in a barrier rather than an act that provides protection, an open act that people can identify with.
What we are saying with regard to human rights is that those that an act is supposed to protect must understand the act. The most important thing is for people to identify with the act. So it is very important that the definition is not exhaustive.
7:35 p.m.
Prof. Katherine Lippel
Very briefly on the definitions, there are seven provinces in Canada that define psychological harassment and in seven different ways. The more it's complicated, the more the professionals who will be hired will be lawyers. If it's open-ended, there will be people who try to prevent the problem. I would really go for a broad definition and let the specialists who can actually intervene in workplaces to make them better workplaces have the wiggle room necessary to actually improve what's going on.
Quebec has the most technical definition in the world, as far as I can tell. There are six elements to it. There are thousands and thousands of litigations going on because of that.
7:35 p.m.
Co-Founder and Co-Managing Partner, Rubin Thomlinson LLP
Actually, to the point that you have been advised that a broader definition means more unfounded complaints, I think the opposite is true. I think the broader definition—and I think this echoes your point—means that there will be more cases, because more things will be found to be contained within that definition. That's not a bad thing, because recognize that even if there's a finding of harassment, it's on a spectrum and it may be a minor case of harassment, and it will be addressed in a certain way.
I would agree: I think broader is better.
7:35 p.m.
Liberal
7:35 p.m.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Thank you.
I would like to start with the Human Rights Commission with a few points.
The first one is the exclusivity of jurisdiction. You were talking about making sure that there's something in this statute that makes it clear that it doesn't prevent going to the Human Rights Commission at the same time.
I just wanted to make sure of this. Is there anything in the Human Rights Act that, from its side, might pose a barrier? Does the only legal problem come from this bill, or is there potentially something in the Human Rights Act that could prevent people from going both routes?
