Human Resources Committee on Feb. 28th, 2018

[Christine Thomlinson]

I think the challenge for small employers is that often they are start-ups, so they're focused very much on their business. They don't always have the time and attention to focus on the kind of culture that avoids problems like the ones that are covered by Bill C-65. They don't always have the resources to do the kind of training we're talking about.

That's really where the legislation can be very effective. Again, I think you want flexibility, but you can certainly do meaningful training in any organization, no matter how big it is. It costs a lot less when it's in a small organization. The same employees who work in small businesses work in really big national organizations. They have the same susceptibility to this behaviour. In fact, I think one could argue that they're more susceptible in smaller organizations, because they don't always have the in-house expertise to understand how to avoid getting into these situations.

[The Chair, Liberal, Bryan May]

Thank you very much.

MP Falk, five minutes, please.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Thank you guys for being here today. Thank you, ladies.

I have a couple of questions. The first one, I believe, is to Ms. Beavers. My question for you, you had mentioned about publishing data. What would be the intent to publish the data?

[Suki Beavers]

There are two intentions. First of all, we know that what is counted, counts. We need to have the data on exactly what is the incidence of sexual harassment, violence, and harassment in workplaces. It's incredibly important to have that data.

The second reason is to be able to understand whether or not the measures that have been put in place are effective. If you can track over time the incidents and what sorts of resolutions there are, that gives you good evidence to understand whether or not the processes you've put in place are effective or whether they need to be amended.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

In order to publish data, would you expect that the survivor of the incident would give approval for that?

[Suki Beavers]

No. Indeed, confidentiality in relation to the particular complainants would be incredibly important, but it should be an employer responsibility to be able to track the number of incidents of harassment, of violence, of sexual harassment that are taking place, and to be clear about understanding how they've been resolved, and to be transparent about that as well. That's an employer responsibility. That's not an obligation that falls to a complainant, and indeed, it would be incredibly important to ensure that the data that is released would in no way compromise the confidentiality of individual complainants.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Perfect. Thank you.

Here's my second question. I'm trying to wrap my head around the competent person thing that's in the bill. In my previous line of work, sometimes we didn't have competent people, and that was actually very detrimental to the health of families and the person, and that type of thing.

So I know that the bill mentions competent person, but what would that mean to you? I know we talked about trained, that type of thing, but are there certain professions, are there certain skills, are there certain credentials that the competent person would have to have in order to facilitate what they're going to do?

That's for anybody to answer.

[Suki Beavers]

I'll be happy to start.

I think some of the points that we made in our submission include the fact that competent persons have to have specific expertise on human rights, on violence, including the spectrum of gender-based violence, and on sexual harassment.

The other aspect of being a competent person that has been debated using different language is there has to be confidence on the part of the complainant that the competent person is going to be unbiased. In some cases that will include independence; in other cases it may not, but the competent person has to be someone in whom the complainant has confidence and who has the expertise and the skills required, and also has the space to do the kind of unbiased and informed investigation of a complaint, and be able to make recommendations that can then be taken forward.

[Christine Thomlinson]

I would add that I think the other level of expertise they need is in how to conduct a workplace investigation. This is not a regulated industry. There's no college you can go to, to get a certificate or a degree.

The danger, of course, is that they really botch a process and do an enormous disservice to the people who come forward. On this front, lawyers for sure have an advantage because we learn in our education and through our practice various aspects of due process and natural justice, things that lay people don't typically learn. It's not a practice that needs to be exclusive to lawyers, but those who are not legally trained certainly need to obtain that equivalent training somewhere.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Do I have time?

[The Chair, Liberal, Bryan May]

You have 30 seconds.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

In your opinion, should that be defined or laid out within the bill, the competent person?

[Prof. Katherine Lippel]

I would just say, certainly, do not specify it has to be a lawyer.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

No, no, but the attributes—

[Prof. Katherine Lippel]

I am a lawyer. I get that. In the regulation, it is already defined to a certain extent, and you might want to look at what's written there, and the fact that the parties have to consent, and put that in the bill. That's possible, because I don't think you can define in a bill which.... Do we want psychologists; do we want...? We don't want to do that.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

No, for sure. I'm just worried that we won't get a competent person and it does more harm than—

[Prof. Katherine Lippel]

Yes, well, you have to make sure.... If you have people who have the consensus of the parties, that's going to help.

[The Chair, Liberal, Bryan May]

Thank you.

[Christine Thomlinson]

Can I add one thing to that?

[The Chair, Liberal, Bryan May]

Be very brief, please.

[Christine Thomlinson]

It would be lovely to get the consensus of the parties, but in an organization that deals with multiple complaints, it can become unwieldy. It's an advantage if you've got a union and you can agree to a roster, so that you've got people available, but people also expect processes to move quickly, and sometimes getting the consent of the parties to use an investigator who's actually available can be very very difficult.

[The Chair, Liberal, Bryan May]

Thank you.

MP Trudel, you have three minutes, please.

[Karine Trudel, NDP, Jonquière, QC]

Thank you.

Ms. Lippel, you said earlier that seven provinces have a definition of harassment. In your experience, should we draw on any one of those as regards Bill C-65?

[Prof. Katherine Lippel]

If you would like the document pertaining to the seven provinces, I can provide it to the committee. We conducted a study of the legislation throughout Canada. Some provinces have a poor definition. I would suggest that you stay away from Quebec's definition, although I am a proud Quebecer.

We can have a broad definition. I am reluctant to recommend something, but an enquiry into the working conditions in the public sector is conducted every three years, as you surely know. That enquiry includes a definition that is not bad. It is broader and more descriptive. I would not put that definition in legislation, but I think it is much more instructive than definitions that require six elements of the burden of proof before having a conversation.

[Karine Trudel, NDP, Jonquière, QC]

I do not have much time left so this will be my final question.

My question is for Ms. Lippel and Ms. Thomlinson. In Quebec, for instance, there are mandatory first aid courses. Do you think we should require all companies to offer courses and training on harassment?