Status of Women Committee on Oct. 16th, 2012

[Joyce Bateman, Conservative, Winnipeg South Centre, MB]

Thank you.

[The Chair, NDP, Marie-Claude Morin]

Mr. Gupta, you have the floor.

[Susheel Gupta]

Good morning. Thank you, Madam Chair and honourable members, for the invitation to appear before your committee today as you begin your very important study of sexual harassment in federally regulated workplaces. I am joined by two colleagues from my office: Rachel Boyer, executive director and registrar at the Canadian Human Rights Tribunal, and Greg Miller, legal counsel.

Upon review of the questions that the committee seeks to address with its study, I thought I would begin by taking a few moments to discuss the mandate of the Canadian Human Rights Tribunal, as it will inform the scope of my presentation. I will then provide an overview of the legal principles that govern us when dealing with complaints of sexual harassment. In closing, I will provide the committee with some statistical information that may be of interest.

The Canadian Human Rights Tribunal is one of the two administrative agencies created by the Canadian Human Rights Act. You have already heard from my colleague from the Canadian Human Rights Commission. It is important to note that there is significant interplay in the contributions each organization makes towards the resolution of discrimination complaints under the CHRA. However, there are important distinctions to be drawn as well: while the commission’s mandate is multi-faceted and includes a wide range of powers, duties, and functions, the statute has only assigned one main function to the tribunal, and that is the adjudication of complaints. In the context of the Canadian Human Rights Act, this adjudication process is referred to as an inquiry.

An individual who believes that sexual harassment has occurred within the meaning of the Canadian Human Rights Act can file a complaint to this effect with the commission. If the commission believes that an inquiry is warranted, it triggers the adjudicative process by making a request to the tribunal to inquire into the complaint.

The inquiry mandated under the Canadian Human Rights Act has been described as quasi-judicial, which essentially means court-like. Hence, the tribunal has many of the powers and attributes of a court. It is empowered to find facts, to interpret and apply the law to the facts before it, and to award appropriate remedies. The tribunal’s hearings have much the same attributes and structure as a formal trial before a court. The parties before the tribunal lead evidence, call and cross-examine witnesses, and make submissions on how the law should be applied to the facts. The parties who are entitled to appear before the tribunal include the individual who filed the complaint, the complainant; the person alleged to have engaged in the discriminatory practice, meaning the respondent; and the commission, the agency that initiated the inquiry process.

As Parliament assigned to the tribunal only the role of adjudication, it cannot be involved in crafting policy. It has no regulatory role vis-à-vis employment practices in the federal workplace, nor does it have a public advocacy role. These roles are assigned to other bodies.

A number of consequences flow from the court-like structure and focused mandate of the tribunal. Its members are required to maintain a high degree of independence from the executive branch of government—for example, the Treasury Board, the Department of Justice, or HRSDC. Furthermore, to conserve impartiality, it is important for an adjudicator to adopt and retain a position of neutrality with respect to the issues that can and will be debated in the cases that he or she may be called upon to decide.

In the context of the current briefing and the work of this committee, these principles prevent tribunal members, including myself, from issuing opinions on many of the matters that will be discussed in your study of sexual harassment in the federally regulated workplace, which is not to say that tribunal members will never make findings on any of these issues. On the contrary, they have done so frequently, and will be called upon to do so again in the future. However, they must make these findings in the context of their adjudicative mandate, based on the submissions made by parties to a case, along with the evidence led and the applicable legal principle, which leads me to my next topic.

What are the legal principles the tribunal applies to complaints of sexual harassment? How do we define sexual harassment? The answers to these questions originate in our enabling legislation, the Canadian Human Rights Act.

This legislation designates 11 prohibited grounds of discrimination, including discrimination based on sex. It also proscribes roughly 11 discriminatory practices, including the discriminatory practice set out in paragraph (c) of subsection 14(1), which provides that it is a discriminatory practice to harass an individual in matters related to employment on a prohibited ground. I would add that the eradication of sexual harassment was a matter of particular seriousness for Parliament, as evidenced by its being expressly mentioned in subsection 14(2) of the Canadian Human Rights Act.

The legal meaning of harassment generally, and sexual harassment in particular, for the purposes of section 14, has been defined in the jurisprudence of the superior courts, and has been developed by the decisions of the tribunal itself in individual cases.

When a complaint of sexual harassment is referred to the tribunal for an inquiry, the tribunal member, after hearing all of the evidence and arguments, generally has to decide whether the conduct at issue was unwelcome; sexual in nature; sufficiently persistent, repetitive, or severe enough to create a poisoned workplace; and, in certain circumstances, whether the employee had notified the employer of the offensive conduct. If the tribunal determines that the impugned conduct fulfills these criteria, it can issue a number of remedial orders against the person found to have engaged in sexual harassment.

In this last regard, it is worth noting that the respondent parties in sexual harassment complaints typically fall into two categories: the alleged harasser—generally the victim's co-worker or superior who allegedly subjected the individual to the harassment—and/or the employer, who has a legislative duty to exercise all due diligence to prevent harassment and mitigate or avoid its effects, failing which it is held responsible for the harassment.

Where the harassment complaint has been substantiated, orders can be made against either the individual harasser or the employer or both.

Finally, discussion of the tribunal's resolution of complaints would not be complete without mentioning that a significant portion of complaints referred to the tribunal are resolved by tribunal members mediating the complaints to facilitate settlements by parties and that tribunal members have been mediating human rights complaints for well over a decade.

However, it is important to note that we have also adopted special measures to mitigate the effects of any power imbalance that may exist in negotiations between complainants and respondents, which are of particular concern in harassment cases.

Finally, I would like to provide you with some indication of the number of sexual harassment cases at the tribunal and the proportion that they make up of the tribunal's total caseload. Before I do so, there are a number of baseline considerations that should be taken into account.

As has been alluded to, not all federal discrimination matters become complaints filed with the commission. Of the complaints filed with the commission, it is important to realize that only a small subset are referred to the tribunal for an inquiry. Moreover, of the total number of discrimination complaints referred to the tribunal for an inquiry, only a very small portion allege harassment in employment on the grounds of sex. Finally, not all complaints of harassment are found by the tribunal to be substantiated. Some are dismissed at the conclusion of the inquiry because the adjudicator has found that the evidence has not satisfied the legal requirements to prove harassment.

That said, the statistics that follow may be of assistance to the committee.

The commission has referred 600 complaints to the tribunal since 2008, and those are complaints under all headings of discrimination. Of those 600 complaints, 36 received since April 2008 have alleged harassment in matters related to employment and on the prohibited grounds of sex. Those represent 6% of the total referrals.

Perhaps of further interest to the committee as it pursues its study is a breakdown by respondent groups.

Of the 36 complaints I referred to involving harassment, 20 were against federally regulated companies and/or individuals employed therein, i.e., non-governmental entities. That equals 3% of the total referrals to the tribunal.

Nine of those complaints are against federal government and/or individuals therein. They account for 1.5% of the total referrals to the tribunal.

Finally, seven are against first nations and/or individuals employed therein.

In conclusion, I hope this presentation has been of assistance to the committee, and I would be pleased to provide any additional information or answer any questions you might have.

Thank you, Madam Chair.

[The Chair, NDP, Marie-Claude Morin]

Thank you.

We will now go on the question period, starting with the government side.

Ms. James, you have seven minutes.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Madam Chair.

Thank you to all of our guests this afternoon.

This is a very serious issue we're embarking on. I'm very glad the parliamentary secretary for the Status of Women has put this proposal forward, and I hope we can come out with some really good recommendations to improve the situation.

I want to touch on a couple of things. I'm hearing these small numbers. You said a very small percentage of the issues that have been forwarded to the tribunal are actually related to sexual harassment in the workplace.

I believe, Mr. Langtry, if I had it correctly, you indicated that very few complaints ever come to you from the federal workplace because they are dealt with through the grievance or complaint process within the federally regulated workplace itself.

Did you say that? I wasn't sure if I heard that. I just want to make sure I heard that correctly, because I'm going to ask a second question after that.

Thank you.

[David Langtry]

Yes: what I was saying was that the numbers, the 332 complaints that we have received since 2007, would represent only a small number of the complaints. You are quite right that many would be dealt with through an internal grievance, or a person may not report it, or it may be referred to the Public Service Labour Relations Board, so that it wouldn't come before us.

[Roxanne James, Conservative, Scarborough Centre, ON]

Okay.

Our last witness was from the Treasury Board Secretariat. The witness indicated that within the federal workplace there are formal mechanisms to file a complaint: you can file a complaint, file a grievance, or actually file the complaint through the Canadian Human Rights Commission.

Are you saying that you've had none come from the federal regulated workplace?

[David Langtry]

No, we have had; what we're saying is that the numbers that we have would not be reflective of all of the complaints that are made. A complainant may avail himself or herself of the internal grievance redress process, or they may come to us, or it may be dealt with by the Public Service Labour Relations Board.

[Roxanne James, Conservative, Scarborough Centre, ON]

Okay.

Do we know exactly the statistics for those that may come? An example might be a complaint in an organization regulated by the federal government that hasn't been resolved through the grievance process or the complaint process that's put in through other means.

Do you have the statistics or the actual number that might come your way as a result of the complaint not being resolved, or the complainant not being fully satisfied that it's resolved?

[David Langtry]

I should say that not all are as a result of that; they may come directly to the commission without going through the other redress.

I can say that of all the complaints the commission receives, just to put it into context, 3.7% are with respect to sexual harassment. Of the complaints that come to us against the federal public service, 3% of those complaints are with respect to sexual harassment.

[Roxanne James, Conservative, Scarborough Centre, ON]

Okay.

I believe it was you, Mr. Langtry, who was speaking to the fact that there needs to be a cultural change in the workplace, regardless of whether it's federal or elsewhere, and that predominantly, when we run into problems with sexual harassment in the workplace, it's because it's a workforce dominated by senior males. Is that what you stated?

[David Langtry]

Yes.

[Roxanne James, Conservative, Scarborough Centre, ON]

Do you feel it's because...? I don't know whether you necessarily feel it's because it's a male-dominated workforce or whether you believe it's because it's a senior position. I am just curious to know whether you feel it's a position of authority or whether it's a gender issue in this particular case.

[David Langtry]

I wouldn't necessarily be able to answer what the view is. The reason for saying it, though, is that based upon the statistics we have, the complaints statistics, 3.7% of all our complaints are with respect to sexual harassment, and, as I said, in the federal public service, which would generally be regarded not as a male-dominated hierarchical organization, 3% of their complaints are.

If we look, though, to the RCMP, of all of the complaints against the RCMP, 7% are with respect to sexual harassment. In the Canadian Forces, 8% of all of the complaints brought against the Canadian Forces are based on sexual harassment. If we look in the transportation sector, 5% of the complaints against the transportation sector are sexual harassment. I would add that almost half of those complaints come from the trucking industry.

[Roxanne James, Conservative, Scarborough Centre, ON]

Do you differentiate, in terms of sexual harassment cases and complaints, between...? You've given me a number of 3.6%. Do you differentiate between how often it happens for someone who is not coming from a senior position?

Normally, when I think of a typical case like this, I think of someone who is in a less senior position being the complainant and someone who is higher up in the organization being the one who's the dominant figure. Do you have many cases where it's on even ground, or it's someone in a lower position?

[David Langtry]

We receive cases from people in all levels of an organization.

[Roxanne James, Conservative, Scarborough Centre, ON]

Maybe I'll direct my next question to Mr. Gupta. You were talking about the legal definition of sexual harassment. You indicated that it could include unwelcomed gestures or, I suppose, comments sexual in nature or going to severe in nature.

What is the definition of “unwelcomed”? What does that mean? This is for curiosity and to get clarification. Is “unwelcomed” someone making an unwelcomed comment or is it someone pursuing a date? What would be considered something unwelcomed in terms of sexual harassment?

[Susheel Gupta]

I think those two examples you give would be considered unwelcome.

It's anything that makes the individual who's the recipient of the action, the discussion, the talk, feel unwelcome.

[The Chair, NDP, Marie-Claude Morin]

I'm sorry, Ms. James, but your allotted time is up. I have to stop you there.

Thank you.

We will now go on to the official opposition.

Ms. Hassainia, you have seven minutes.

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

Thank you, Madam Chair. I'd like to inform you that I'll be sharing my time with my colleague Ms. Day.

First of all, I'd like to thank you for the excellent work that you do as well as for your presentations and clarifications. They are much appreciated.

I'd like to put a question to Mr. Langtry or his colleagues.

Correct me if I'm wrong, but you mentioned that 7% of the complaints you received concern the RCMP. Do these complaints come from civilian members or regular members of the RCMP?

[David Langtry]

I don't have the breakdown between civilian and regular members of the RCMP because both do bring complaints. I certainly can provide that information, but it is from both sorts of members, as I say, that we receive complaints.

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

That's perfect.

You also mentioned that the federal government deals with complaints for which it is responsible through its own institutions. Is it important to know the extent of the problem of sexual harassment? Do you think we can really respond to such serious incidents if we don't know the general extent of them?

[David Langtry]

That may be true. We wouldn't necessarily know that. The complaints that come before us, as I mentioned in my comments, tend to be the ones in which they use the word “intractable”. They tend to be the more serious ones. That's not to say all of them are then referred to the tribunal, of course, but that said, there may be cases that are dealt with at the local level, if you will, within a department through their agency, and it may be that in serious cases, as I said, a person chooses not even to come forward. Some may well leave the workforce or whatever.

We have no way of tracking that kind of statistic, because we can only deal with the complaints that come in to the commission.

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

I would like to know what human and financial resources are currently allocated to dealing with complaints and sexual harassment. Has funding increased, decreased or stayed more or less the same in recent years?

[David Langtry]

No, there haven't been changes in finances, except that the commission did receive additional funding of $5.7 million at the time of change to our legislation in 2008 over five years, with the change being that complaints can now be brought by first nations people in this country, both against the federal government and against first nations government for matters done under or pursuant to the Indian Act, which were previously precluded.

We did receive additional funding for this that will sunset midway through the next fiscal year. Otherwise, we devote our resources to, and we certainly look to, trends on where the maximum or the highest number of complaints are. Right now we're prioritizing systemic discrimination complaints to ensure we deal with those areas that have the greatest impact on Canadians, but we're still required by legislation to receive individual complaints and deal with them in the same way as all other complaints.