Thank you very much, and thank you for the invitation. This was not my initiative—I was invited—and I really appreciate the invitation. As the chair said, I have brought a copy of a brief in French and English. The clerk has it, and she will distribute it to you.
I hold the Canada research chair on occupational health and safety law and have done so since 2006. I've been a member of the Quebec bar since 1978, and I was a professor at the Université du Québec à Montréal between 1982 and 2006.
More relevant to this committee is the International Labour Organization, which is currently developing debates on an international convention on occupational violence. The gender bureau of the ILO invited me to prepare a document in support of their discussions, and you have the reference in your documentation. It provides an overview of what's going on, first of all in terms of definitions of violence in the workplace, and secondly in terms of different regulatory strategies around the world. In my seven minutes, I will not try to give you a synthesis of that, but, if you are interested, you have the ILO document that is published by the ILO.
I have seven points that I want to make in my seven minutes, and it might not even take seven minutes. You have the details that are fleshed out in the brief.
First of all, I want to applaud the explicit inclusion, at section 122.1 of the Canada Labour Code and in part 1 of Bill C-65, of the prevention of psychological injuries and illnesses. I think this is to be commended. I do not fundamentally think this is a change in the law, but I think it's very pedagogical, in the sense that it will avoid litigation.
Please don't make that disappear, because you're going to hire a lot of lawyers.... I love to train lawyers, but if I could train them to do something more useful, it would perhaps be better if you eliminated that ambiguity. I applaud you for doing that in this draft legislation.
Second, and I understand completely why it can be interesting to not define harassment, but I have concerns in relation to the absence of a definition, and I'll tell you why. I think it will lead to a lot of litigation. The current version of the proposed legislation may make this legislation more vulnerable to rapid modification through regulation against the will of the parliamentarians who have adopted it, because you don't control what happens two, three, or four years down the line.
I'm not going to provide you with a definition, although I'm happy to answer questions on this. What I would say is that, minimally, you should be able to ensure a broad and open-ended definition that explicitly includes psychological harassment, sexual harassment, as well as other forms of discriminatory harassment.
I also know that cyber-bullying is a key issue, but, if you have an open-ended definition, you don't have to talk about cyber-bullying. I think at least those three elements are absolutely essential in the legislation itself. All of these categories of workplace parlance in the report that I did for the ILO, and in ILO discussions, are included in the concept of violence. However, I understand that the regulatory practices here are not to include them, and that's fine.
Third, to be more effective, the legislation should include explicit mention of the need to address psychosocial risk factors underpinning violence in the workplace. I explain that in detail in the brief, and we discuss it in the ILO. In terms of psychological harassment, sexual harassment, and physical violence in the workplace, psychosocial hazards lead to this type of violence. If you don't prevent the psychosocial hazards, you're going to have a much more difficult time in preventing the violence.
Fourth, clause 5 of Bill C-65 proposes new subsection 127.1(1), and suggests we channel all complaints to the supervisor. I explained why I think this is a bad idea. We have research data, both federally, and from EQCOTESST, which is a study of a representative population of Quebec workers, and it's very clear that the majority of cases in Canada come from the supervisor as the author of harassment.
In part 2, it makes a lot of sense to have the supervisor find out if there's a leaky faucet or there's gas leaking into the workplace—you have to tell him right away—but when you're talking about violence, it may not be a good idea to start with a supervisor. You have to have some flexibility in there in cases where supervisors are responsible for the violence or harassment.
Fifth, clause 6, amending 134.1 of the Canada Labour Code and related provisions—and there are a whole bunch of them, as you well know—exclude policy committees and representatives of the union from processes relating to harassment and violence. I suggest respectfully that this is a mistake.
I have a doctoral student, Rachel Cox, who is now a professor. She did her doctorate on the implementation of the Quebec psychological harassment legislation in unionized workplaces in Quebec. She has clear evidence that unions can be allies in relation to this. I think it's important to have flexibility in that it's not necessarily the health and safety committee. It might well be better served to have a specialized committee, but one whereby all members have the same regulatory protections as health and safety committee members.
I hope that's clear: in other words, protect them from the reprisals, but it's not everybody who wants to hear about harassment. You have to pick and choose the people, both on the management and union side, who are interested in this.
In crafting legislation, lawmakers should bear in mind that gender and equity issues often underpin situations of violence and harassment in the workplace. I address this aspect in the brief. In particular, if you have a specialized committee, you might want to be able to adapt that committee specifically to the needs of the population who disproportionately are affected by violence and harassment, including discriminatory harassment.
My final point is that effective legislation should be designed to provide support for the target of the harassment. I try to avoid saying “victim”, but it's to support the victim of violence or the target of harassment, and the legislation should not, in my opinion, seek to regulate punishment of the perpetrator. Employers can already punish perpetrators. I find that when the legislation is punitive legislation, what happens is everybody lawyers up really quickly, and the victim gets re-victimized. I have suggestions in the brief as to how we could be more victim-friendly in this type of legislation.
Thank you very much.