Thank you for inviting us here to make remarks on Bill C-65.
In preparing these remarks, we drew on our experience as a law firm that solely focuses on investigation and training relating to employee misconduct in the workplace, the vast majority of which involves harassment. We've been doing this work for 15 years, and we look forward today to sharing the collective experience of our team of 11 investigators who do this work full-time across the country.
Having reviewed the bill in detail, we have four areas that we want to focus on today in our limited time. They include the definitions, which we've heard some comments on already; policies and training; confidentiality; and the mechanics of investigation. I'll deal with each of those in turn.
Beginning with definitions, we've heard comments today already that the bill doesn't include definitions of violence and harassment, with the intention that those terms would be defined in the regulations. We know from the work that we do that definitions are critical. They're critical to establishing a standard of behaviour for people in the workplace so they understand how they're expected to behave, and they're critical from the perspective of the investigator, because we need them to underpin the findings that we make. We are concerned that leaving these critical definitions until the regulations will not send the strong message that you intend to send to the people who would be covered by this legislation.
We also have the unique perspective in our practice of seeing a myriad of definitions in play. Every investigation that we do takes place in a different workplace, typically under a different policy, and often under a different definition. We've seen definitions that work very well and definitions that work far less well.
For example, we see harassment definitions that require that behaviour be directed at particular individuals, which is not a definition that we would endorse. We see definitions that include a requirement that there be intent to offend, which I think is universally understood to not be an appropriate definition. We see definitions that include the requirement that the person on the receiving end suffer qualitative psychological or physical harm, which we've already heard comments on.
We really believe that you have an opportunity here to carefully consider an appropriate definition and to set that standard at the outset and not leave room for deviation later.
We wanted to address policies and training because we note that the bill includes language that talks about organizations taking measures to prevent and protect against harassment and violence in the workplace. We absolutely think those things are critical, but we're concerned that the current language in the bill is too general and leaves far too much room for organizations to interpret how they'll choose to do that.
What we've seen in our years of experience—and we have the Ontario experience to bring to bear, because similar legislation has been in place now for quite some time—is that, when organizations in Ontario were required to take efforts to generically prevent and protect, many organizations interpreted that by asking, “What is the bare minimum that I need to do in order to satisfy this statutory requirement?” That is absolutely not the intent of this legislation. The intent of this legislation is to put effective measures in place to help address this workplace problem. We're concerned right now that, without more guidance, you're going to leave that same situation in place federally.
In our work we've also had the opportunity to speak to hundreds and probably thousands of employees about their experience with harassment in the workplace, and we hear from many of them why they're reluctant to bring forward complaints about harassment at work. A recurring theme is that they tell us is that there were no policies, or if there were policies, they were unaware of the existence of the policies. They tell us that when there were policies, they didn't know they existed, they didn't understand them, and they didn't know how to use the reporting mechanisms that were set out therein.
From our perspective, language in the bill should absolutely explicitly require employers to both have policies that specifically address harassment and violence in their workplaces—that is the case in Ontario, and in our experience that has been extremely successful—and conduct meaningful and effective training on those policies. Again, the educational requirement in Ontario, has seen many employers do very little to effectively educate their people on what harassment is and how it can be addressed in the workplace.
The issue of confidentiality has been commented on by some of the other speakers tonight, so we'll make two comments here.
The first is that we understand some provisions have been put in the bill to address this, and they deal with how committees and health and safety representatives will be shrouded through confidentiality under the bill.
Our concern here is that in doing that really the language is too narrow because, absolutely, there are people who need to be kept out of the confidential information, who extend far beyond the health and safety committees, and health and safety representatives. There's another piece and I don't know if it's been considered. There may very well be people on those committees, amongst those representatives, who have to be involved in the investigative process. What if a respondent is a member of a committee? Certainly they have a right to participate in a process. What if they need to be a witness? What we would encourage you to do is to take a look at the language that was inserted in the Ontario legislation, and what it says in order to preserve confidentiality. It reads:
...information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless [such] disclosure is necessary for the purposes of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law;
You'll see that's far more general, but also more protective.
We've seen employers using that language since that particular provision was enacted in Bill 132, in September 2016, and the effect of it, in our experience, has made employers be much more thoughtful and careful about their use of confidential information surrounding investigations in the workplace.
The last comments we'd like to make relate to investigations, and here we'll echo some of the comments of the other speakers about the concern around reporting having to be through the supervisor. We absolutely in our practice see the percentage of occasions where the supervisor is the harasser; and not having a mechanism whereby someone can circumvent that reporting group, we think is extremely problematic. We would encourage you there to again consider the Ontario experience, where policies and procedures in Ontario are required to provide additional avenues for employees to complain. Even if the supervisor is not the harasser, many supervisors are not properly trained to deal with harassment complaints and are not sufficiently knowledgeable of harassment to identify it when it is brought to their attention, particularly psychological harassment which doesn't always present in the way that people understand.
The net result of that legislative gap for us means that as the bill is currently drafted, many complaints between employees and supervisors will remain unresolved, which means that they'll go to the minister, and the minister will then have to deal with them. We think that's going to leave the ministerial resources vastly over-extended.
One final note is that currently the bill talks about investigating all occurrences and complaints of harassment. While we think that is a laudable objective, we'll note one unique aspect about the Ontario legislation which contains the same requirement. In Ontario, with those investigations, the language that's used is that employers are to conduct investigations into incidents and complaints of workplace harassment that are “appropriate in the circumstances”. We would really encourage you to consider some language that allows for flexibility because not every incident and even complaint of harassment necessitates a full-blown investigation. We've seen employers struggle with even what's considered to be “appropriate in the circumstances”, but at least that language has allowed them to do some creative interpreting of what might be a way to deal with that particular situation. We fear that an inflexible requirement that everything be investigated is going to become unwieldy, and that the effect of that is going to mean that more of it is going to end up with the ministry.
We thank you for allowing us to make these comments, and as my colleagues have said, we look forward to your questions.