Pay Equity Committee on April 18th, 2016

[Fiona Keith]

We have not been asked for comment.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

I know, but when that happens, typically regulations get posted in the Canada Gazette and there's a 30-day period, or further if the minister wants. Once those regulations are there, you would probably then comment. Is that correct?

[Fiona Keith]

If the regulations are posted, that's a possibility. I should say there have been two rounds in my understanding on the PSECA regulations, and we were not consulted. They were private consultations.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

I must be near my end.

[The Chair, Liberal, Anita Vandenbeld]

You have 35 seconds.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Hopefully I can get another round today, but I do appreciate the work you do for Canadians in ensuring we have equity, as much as possible, given the challenges we all face.

Thank you.

[Ian Fine]

Thank you.

[The Chair, Liberal, Anita Vandenbeld]

The next one will go to Ms. Benson for seven minutes.

[Sheri Benson, NDP, Saskatoon West, SK]

My apologies for being late. Thank you very much. I heard the end of your presentation, and I came prepared with some questions and comments I'd like you to reflect on.

You talk about pay equity as a human right, and we look at the other piece of legislation that doesn't have regulations, but is coming in like.... It has a law but not regulations. I can never remember the initials. It's PSECA, and that is where pay equity would be part of a negotiation. I want you to tell me why it is not a good idea to have a human right as part of a labour negotiation.

[Ian Fine]

Sorry, I didn't catch the last part. To not have a human right...?

[Sheri Benson, NDP, Saskatoon West, SK]

As part of a labour negotiation. I guess you can tell what I'm getting at. There's a reason why some things aren't at the bargaining table, and that's because many of us believe they're human rights and you can't bargain them away against something else.

[Ian Fine]

I'll begin the answer and defer to my colleagues if they'd like to add. The collective bargaining process involves trade-offs. We don't believe the human right of pay equity should be subject to trade-offs. To be clear, it's not that we're saying unions and management shouldn't have a role, particularly in the maintenance of pay equity. But just in the initial exercise, which as the committee knows well is founded on international covenants that Canada's a party to and that calls for an objective appraisal of work, we believe it's important that process be dealt with separately and through a separate exercise with the appropriate experts involved, guiding the parties along, and not subject to trade-offs.

[Sheri Benson, NDP, Saskatoon West, SK]

I wonder if you could comment also, and maybe you have, around a complaint-based process. It seems to me from what I've read, and what we know, that it has a couple of issues. One is the length involved in those type...I guess they become litigations by the end. Often the complainants aren't even around by the time some of the decisions are made. For not only the financial costs, but the human costs, why might that not bring justice to those people who are seeking pay equity?

[Ian Fine]

I think you've hit on most of the major concerns we would have and that we've discussed in the past, beginning with the “Time for Action” report in 2001, and it is issues around the length of time and the complexity of the evidence. These cases can become emotionally charged for everyone involved in the process: for the parties themselves, for the counsels who are acting for the parties, and for the tribunal members hearing those cases. They can be very difficult. There are those issues that we all face in dealing with them. We believe the proactive model would ensure a more timely and a less litigious adversarial approach to resolving these issues that would be in everyone's best interest. Not only have you heard about the length of some of these cases and the complexity, but also the situations where there have been large retroactive payments that employers need to deal with at the end of the day. That's not in their best interest either. The proactive model would make that different, and it would not make it as difficult on the employer and the employees.

[Sheri Benson, NDP, Saskatoon West, SK]

The 2004 task force recommended a stand-alone organization to deal specifically with pay equity around the legislation, the education, the outreach. I think it would also look at maintenance issues so they're kept current.

Are you in favour of that model? Let me know your thoughts on that and also talk about what we see in those three other jurisdictions that would have a human rights commission, plus some kind of stand-alone pay equity. How do they relate to one another?

[Ian Fine]

We indicated publicly after the release of the Bilson task force report that we adopted the recommendations in those reports. We would echo and support the advice given by Professor Bilson and her colleagues at that time. We believe again that it is a much less painful process for everyone involved, so we support those recommendations.

[Sheri Benson, NDP, Saskatoon West, SK]

Nothing has changed. There's been a time period between.... Those recommendations are still true today. They still reflect what you believe would be a good model.

[Ian Fine]

Yes.

[Sheri Benson, NDP, Saskatoon West, SK]

I'm not saying there aren't going to be tweaks and things like that but generally the—

[Ian Fine]

I'd add one point that you may find as useful information. Subsequent to the release of the Bilson task force report, there was a case that made its way to the Supreme of Canada. Mowat, I believe, was the name of the case, and the result of that case is that complainants are no longer entitled to legal costs associated with the filing of the complaint. That was a major case, a major decision.

So you can imagine just back to the question about the vagaries, if I can put it that way, of the complaint process. For an individual to have to file a complaint with all the complexity associated with that and then not be able to recover or recoup their legals costs in a case that in some cases, as we've said, has gone on for decades, is somewhat Herculean. That for us is another reason why that proactive model is so important. It doesn't impose onerous obligations on any of the parties.

[The Chair, Liberal, Anita Vandenbeld]

That's the time, sorry.

We will move to Ms. Dzerowicz, and you have seven minutes.

[Julie Dzerowicz, Liberal, Davenport, ON]

So little time and I have so many questions.

I'm going to pick up on my colleague's question around the ideal model. Your response was the melding of the three models we have. Could you pull out a few of the elements that you think should be under particular consideration at the federal level?

[Ian Fine]

Thank you for that clarification because those three models exist in Canada, and I think for sure we should be looking to those models. It doesn't mean that we should be excluding other models as well. I think I'll defer to my colleague Ms. Keith who can respond to that question.

[Fiona Keith]

I think Mr. Fine is correct. There are elements in all the models that are promising in terms of pay equity implementation and maintenance. In general, the commission has taken the position that the task force's recommendations will likely lead to the most robust and most effective right to pay equity, both in terms of implementation and cost.

There was a question earlier equating this to proactive bylaw enforcement. A study has not been done on this but based on the commission's experience it is possible if not probable that a proactive model would involve less cost for government. The reason is that investigations, and pay equity investigations in particular, are extremely costly. When a pay equity investigation unfolds, it takes many more resources for an institution like the commission than other types.

But returning to your question about other aspects of the model, in addition to the Bilson task force recommendations, I think the commission would recognize there is a role for collective bargaining in the maintenance of pay equity. Once you've achieved pay equity away from the bargaining table, away from the kinds of forces that can influence the outcome of the collective bargaining process, then yes, it makes sense for parties going forward to have an obligation to maintain at the collective bargaining table.

I think in general, those are the elements from the different models that would make sense.

[Ian Fine]

I think you wanted some details on what would happen in that proactive model and how it would actually unfold. Is that...?