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.
Fiona Keith Senior Legal Counsel, Canadian Human Rights Commission
If I understand your question, you're asking whether there's any condition or limit in the Human Rights Act on people accessing another process. Am I correct?
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Or having to wait until they have completed another process before they can go to the Human Rights.
Senior Legal Counsel, Canadian Human Rights Commission
Section 41 of the Canadian Human Rights Act gives the commission the discretion to decide whether or not to defer the complaint process under the Canadian Human Rights Act so that another process can be completed.
The chief commissioner and our other commissioners regularly decide whether or not, given all the circumstances of a particular complaint, we should wait to deal with a complaint that's filed by a complainant. That's at the discretion of the commission.
We consider a number of factors, all of which have been established by Supreme Court of Canada jurisprudence, including whether or not the other process is capable of providing a human rights remedy to the complainant.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
From your perspective, then, the potential block is only that we do what you had suggested about including just one sentence in there to say that nothing in here prevents someone from going to the Human Rights Commission, and then that would deal with the problem, but you would still have a discretion.
Senior Legal Counsel, Canadian Human Rights Commission
We agree with the language proposed by NAWL.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
I'm sorry, it was actually you who proposed it.
Did you have any other comments on that, about the potential bouncing back between the two statutes?
Project Director, National Association of Women and the Law
No, just again to reaffirm the importance of ensuring that the multiplicity of mechanisms remains available to complainants, and in part because of the differences in remedies that are available under the various mechanisms.
What we would not want to see is that the remedy proposed under Bill C-65 ends up actually limiting the access to justice that those who are victim survivors of harassment, violence have available to them. Indeed, we think that making that intention clear in the act would be helpful, all around.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Thank you.
This is back to the Human Rights Commission.
Last week I believe one of the unions had suggested that when looking at a list of investigators to be looking into the system, if you wanted to take into account diversity issues and equity issues, the people best placed to keep a list of investigators available for people to look at would be the Human Rights Commission. Apparently they said they had spoken to you about this possibility, maybe not to you two, but to the commission.
Have you thought about that as a possibility, that down the line the Human Rights Commission could be the keeper of a list of qualified investigators with experience, who can take into account equity issues?
Senior Legal Counsel, Canadian Human Rights Commission
The commission is a multi-functional agency that serves a number of purposes, including deciding on complaints. We also have a promotion role, a research role, and other roles. But we must always be careful to keep the complaint processing function and decision-making function that the commissioners exercise impartial. It is challenging for an agency such as this to keep a list or a roster, but we would certainly be open to entertaining a role in proposing training, or being available as consultants on training if properly resourced.
Liberal
Julie Dabrusin Liberal Toronto—Danforth, ON
Thank you for that.
It's just because I believe it was mentioned in the evidence we heard last week that there had been some discussion, with the possibility of you holding that roster, so I just wanted to clarify if with you directly.
My next question actually comes from Ms. Thomlinson, who mentioned adding some flexibility as to when an investigation may go ahead.
I want to bounce that out to perhaps Ms. Beavers to start with. How do you feel about adding that in as a suggestion? It was that rather than requiring an obligation to investigate every complaint that someone had been made aware of, it would be done when it's appropriate. There was more specific language.
Co-Founder and Co-Managing Partner, Rubin Thomlinson LLP
The language used is that there is a requirement to conduct an investigation, but the investigation has to be appropriate in the circumstances.
Project Director, National Association of Women and the Law
I think there is some benefit to having that kind of language, but then again we go back to that is the beauty of having a multiplicity of mechanisms available. Say, for instance, there is a decision made not to pursue a complaint under a particular process, others will remain. I think flexibility is a positive element that can be considered.
Liberal
Co-Founder and Co-Managing Partner, Rubin Thomlinson LLP
Could I add one thing, then?
February 28th, 2018 / 7:40 p.m.
Co-Founder and Co-Managing Partner, Rubin Thomlinson LLP
Where that language has become important is that when there are complaints of harassment, investigations seem to be the next natural step because someone has taken the step to actually come forward with a complaint.
Where it has been particularly challenging is in cases where information has come to the organization that suggests that harassment may be occurring, so what would be defined under Bill C-65 is an occurrence. That's where employers have really struggled, because how do you investigate a rumour? How do you investigate a piece of information that comes third-hand through someone? You don't have a complainant. Sometimes you don't have a respondent. That's where that flexibility has really been helpful.
They do some form of investigation. They might do an employee survey to try to find out whether there really an issue there. They might conduct a series of more generic interviews with staff. That flexibility has really helped deal with those situations.
Liberal
The Chair Liberal Bryan May
Thank you.
Just for additional clarification, Julie, it was PSAC that mentioned the potential.
Conservative
Mark Warawa Conservative Langley—Aldergrove, BC
Ms. Thomlinson, you started off your comments with the importance of having a definition. You said it would be critical to establish what type of behaviour would be defined as harassment. In my understanding that correctly, it is important that we do have a definition in the legislation.
You are a prominent employment law firm, well respected. Some cases are high profile. Some are low profile. When you are employed in a position of the investigator, who do you represent?
Co-Founder and Co-Managing Partner, Rubin Thomlinson LLP
We don't represent anyone. Our role is a neutral one, and we make that very clear to the people we interact with. It's part of our standard introduction. We're not representing anyone's interests. We are primarily neutral fact finders where we collect information from the parties when there are parties, witnesses, or generically other employees in cases that are occurrences or incidents. Then we collect those facts. We collect other evidence. We make factual findings based on the information we collect. Depending upon our mandate, in many cases we're asked to then take those facts,. and measure them against a policy, and draw some conclusions about whether we think a policy has been violated. That's our role.
Conservative
Mark Warawa Conservative Langley—Aldergrove, BC
That's good to hear.
You highlighted the importance of training. This is not an exact science. When I ask you for the percentages of those who don't realize what they have done is harassment so I'm not asking for an exact percentage, but of the cases you're involved with as an investigator, is there a large number where the person didn't realize what they were doing was harassment? My follow-up question will be is there a large or a small percentage that have intent?
Co-Founder and Co-Managing Partner, Rubin Thomlinson LLP
I'm looking at my colleagues. I think I have an idea in my head based on what I think. I would probably say it's in the 50% range, and that is highly inexact. Would you agree with that?
Investigator and Trainer , Rubin Thomlinson LLP
I would say that. Fifty-fifty of respondents who didn't realize what they were doing violated the policy.