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.