Status of Women Committee on Oct. 16th, 2012

[Sana Hassainia, NDP, Verchères—Les Patriotes, QC]

Thank you.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

I would like to ask a question that is probably also for Mr. Langtry.

One of the witnesses said that culture is part of work. In the case of sexual harassment, some methods have changed. Now, the Internet, Facebook, and the like are used a lot. It seems it is still a part of work. In fact, this morning we saw and heard pretty serious numbers. Very few of the people who experience harassment make a complaint or make it to the commission. You demonstrated that, once again.

Furthermore, I was left quite puzzled about your appeal procedures. Your document says the following:

[...] the commission can: refer the complainant to a more appropriate forum if it believes that there are other review or dispute resolution procedures that are accessible or if it believes that it would be more appropriate for the issue to be resolved under other federal laws; refer complainants to the Canadian Human Rights Tribunal for adjudication; dismiss the complaint.

We get the impression that the policy is designed so that complaints do not make it through or that there be as few as possible to deal with.

Is it possible that many victims are eliminated along the way?

[David Langtry]

I would not necessarily say that they are being diverted, because if the respondent or the employer says they want us to refer it to the alternate dispute process that they have, it is within our jurisdiction, under our act, to refer it out. However, it is open to the complainant to raise the reasons that he or she should not be required to go through that other process, and we can choose, then, to deal with it ourselves in those appropriate circumstances, so it's not always being diverted out. They're not always required to go to another process. They can come to us.

It is our view, and obviously the view of Parliament, in providing for that avenue, that the Canadian Human Rights Commission does not have the monopoly on human rights and on dealing with discrimination and that other tribunals and other sources have the ability to deal with and apply the Canadian Human Rights Act.

[Anne-Marie Day, NDP, Charlesbourg—Haute-Saint-Charles, QC]

Does your organization play a role in preventing sexual harassment in the workplace?

[David Langtry]

Yes, we do have a preventive role. Certainly that's one of the mandates, and we have a branch devoted to that. Ms. Maillet is from our knowledge centre, which develops policies and knowledge-based research, and there is our discrimination prevention branch as well. We have a recent tool, the human rights maturity model, which is a tool to assist employers in developing a culture of human rights in the workplace.

[The Chair, NDP, Marie-Claude Morin]

Thank you.

We will now go back to the government side.

Ms. Ambler, you have seven minutes.

[Stella Ambler, Conservative, Mississauga South, ON]

Thank you, Madam Chair.

Thank you for being here today to discuss this issue with us.

I'd like to wrap up Ms. James's questions, if I might.

Mr. Gupta, I think what she was trying to get at was the definition of “sexual harassment”, and, in particular, at what point it reaches the stage where you would call it harassment.

For example, if someone in a workplace was being asked out on a date or for a drink after work, and that question or request was unwanted and the person asked again the next day and the next day, is there a number of times after which it's considered harassment? Is it more than just perception by the person? As far as the unwelcome advances go, is it just about perception? At what point does the Human Rights Tribunal define it as “harassment”?

[Susheel Gupta]

The courts have said there are a number of factors the decision-maker must look at. Specifically, for example, you asked about whether it's unwelcome. I'll read it to you. It says:

The test for sexual harassment is unwelcome conduct of a sexual nature that is detrimental to the work environment. To determine whether conduct is unwelcome, the Tribunal will look at the complainant's reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome.

That's one factor the tribunal would have to consider. The other factors would be the repetitiousness of it, and the severity of the actions or comments that are made. There are a whole number of factors that a tribunal in an individual case would have to consider to determine whether that scenario met the test for harassment.

[Stella Ambler, Conservative, Mississauga South, ON]

Okay, so it's not just about persistence, but about the effect in the workplace, the effect on people around them, and the ability to do one's job without retribution.

[Susheel Gupta]

Correct.

[Stella Ambler, Conservative, Mississauga South, ON]

Fair enough. Thank you.

I wonder how often tribunal complaints are referred to a panel. My understanding is that if the case is complex enough, the chairperson will assign it to a panel to conduct an inquiry. Is that true, and at what point is a case sufficiently complex to warrant a panel referral?

[Susheel Gupta]

In terms of the number of cases that the tribunal has assigned to a panel, our legislation provides for an inquiry to be overseen by either a panel of one or a panel of three. I presume you're asking about a panel of three.

[Stella Ambler, Conservative, Mississauga South, ON]

I think so, yes.

[Susheel Gupta]

I don't have the data in terms of how many cases have been referred to a panel.

[Stella Ambler, Conservative, Mississauga South, ON]

Is it half, many, most, hardly any...?

[Susheel Gupta]

It isn't many.

[Stella Ambler, Conservative, Mississauga South, ON]

It's not many. Okay.

[Susheel Gupta]

Certainly in the early 2000s and late 1990s, there were a few cases under pay equity.

[Stella Ambler, Conservative, Mississauga South, ON]

They would have to be, I would think, very complicated, and very—

[Susheel Gupta]

There are a number of factors, including complication, number of witnesses, complexity of the issues, even novelty—are these new legal issues that need to be considered?

Are we talking about hundreds of thousands of pages of documents? Is this significant to national importance, for example? All these considerations, as well as the resource implications of essentially taking three of our members off assignment to 60 cases that they might all share to hear something like that.

[Stella Ambler, Conservative, Mississauga South, ON]

You obviously keep statistics, and I'm very pleased to get some idea of numbers and I thank you for that.

How often are the employers held liable for the action of their employees and specifically asked to compensate the victim? I know there are $20,000 limits for pain and suffering and another $20,000 if the harassment was deemed to be wilful. How often does that happen? How often do we charge the employer, convict the employer, and make that person pay damages?

[Susheel Gupta]

First, we don't actually collect statistics at the tribunal generally. We've prepared some numbers today for the committee members to assist them, and certainly if there are some other specific data sets you would like us to collect, I think we can do so.

In terms of the remedial orders that the tribunal can issue, you are correct. Where a respondent—be it an individual, a government department, or a corporation—has been found to have discriminated against an individual or sexually harassed an individual, the person or the organization can be ordered to implement sexual harassment training and sensitization within the workplace. The employer, in consultation with the commission can.... The tribunal can require that the respondent draft a revised sexual harassment policy. That's something that the commission has a lot of expertise in doing, and that can include internal complaint and investigation procedures.

[Stella Ambler, Conservative, Mississauga South, ON]

Then there are many ways of redress, including monetary payment.

[Susheel Gupta]

Most certainly there are.

[Stella Ambler, Conservative, Mississauga South, ON]

You wouldn't know off the top of your head how often one is used versus a different kind?