Thank you very much.
By way of introduction, my name is Christopher Rootham. I've been practising labour and employment law in the private sector for approximately 10 years. I'm also a lecturer and professor of labour law at Queen's and the University of Ottawa. I've written extensively about human rights, labour and employment law, particularly with an emphasis on the federal public service. I would like to confine my introductory remarks to dealing with the question of recourse available to the victims of sexual harassment within the public service.
In my view, there are five essential characteristics of an effective system of recourse. It must be expeditious, because justice delayed is justice denied. It must be procedurally fair, including the opportunity to be heard by an impartial decision-maker. There must be expertise by the decision-maker. There should be broad acceptance of that decision-maker within the community. There should be effective redress at the end of that recourse mechanism—can the system right the wrong?
In the federal public service there are at least five different systems of recourse that could be used by a victim of sexual harassment, depending on the circumstances of that harassment. A victim could file a sexual harassment complaint by policy, either Treasury Board's policy or a policy in place at a separate agency or separate employer. The victim could file a grievance under the Public Service Labour Relations Act. The victim could file a complaint with the Public Service Staffing Tribunal or the Public Service Commission, if the complaint refers to sexual harassment in an appointment process in the core public administration. A victim could file a complaint with the Public Sector Integrity Commissioner or with the Canadian Human Rights Commission.
The first difficulty with this system is the sheer number of different recourse mechanisms available. This leads to confusion, overlap of functions, and inefficiencies because of duplication, or alternatively, passing the buck, as victims are passed from jurisdiction to jurisdiction in an effort to find someone who will take control or take jurisdiction over their matter.
There are also difficulties within or about each of the particular systems. With respect to a sexual harassment complaint, there are three difficulties I'd like to bring to your attention. First, a sexual harassment complaint is not available to the victims of harassment if they have already grieved or attempted to use some other method of recourse. Second, there's no requirement under the policy to provide redress to the victim. The policy talks about corrective measures to address what to do with the perpetrators of the harassment, but not to talk about what to do for the victims. Third and finally, there's no requirement that the deputy head or the deputy minister agree with or implement the recommendations of the investigator.
With respect to the grievance system, there are two categories of grievances in the federal public service: grievances that can be referred to adjudication, which is independent third party resolution; and grievances that cannot be referred to adjudication, which are finally decided by the deputy head or his or her delegate.
Grievances can be referred to adjudication if they are about discipline or if they are about collective agreement violations. For those employees who are represented by a bargaining agent who has successfully negotiated a sexual harassment clause into their collective agreement, the grievance may be referred to adjudication. The grievances of unrepresented employees or employees whose bargaining agents have not negotiated sexual harassment clauses are finally decided by the deputy minister alone.
If the matter is not referred to adjudication, this is not a truly impartial hearing for unrepresented employees or for certain represented employees, particularly with respect to the remedy. Is a deputy head expected to award damages to the victims of sexual harassment or career assistance that costs money, or other remedies with a financial consequence when this money is going to be taken out of their budget for other priorities? Further, deputy heads have no expertise in assessing damages. They have no expertise in adjudicating. Their expertise is in management, in program administration; it's not in remedying the effects of sexual harassment.
Another category of recourse is to the Public Service Staffing Tribunal or the Public Service Commission. This deals with only a limited number of cases, if the harassment occurred in the context of an appointment process to the core public administration, to Treasury Board. There are limited remedies in that case, because the complaint is only about that staffing action.
A victim could file a complaint with the Public Sector Integrity Commissioner. However, the Public Servants Disclosure Protection Act permits the commissioner to refuse to investigate a complaint of sexual harassment on the grounds that there is another method of recourse available. Frankly, we're in early days with the Public Sector Integrity Commissioner in terms of learning how they're going to deal with complaints of sexual harassment. We simply don't know if that is going to be an effective recourse.
Finally, a federal public servant could file a complaint with the Canadian Human Rights Commission. The Canadian Human Rights Commission, as you're aware, is a gateway to get to a tribunal. The commission does not make decisions. The commission screens complaints. Only approximately 9% of cases or complaints filed with the commission make their way to a tribunal.
The commission can refuse to refer a complaint of sexual harassment to the tribunal for a number of reasons. One of them is that paragraph 41(1)(a) of the Canadian Human Rights Act permits the commission to refuse to investigate a complaint on the grounds that it should be dealt with in another method of recourse. Both legally and experientially, I can tell you that the commission routinely refuses to investigate complaints of sexual harassment in the federal public service because those victims should be going to grievance or through Treasury Board's harassment policy.
Also, the commission can refuse to refer a complaint to the tribunal if, in its opinion, an offer to settle has been made to the victim and the victim should have accepted it. This is a valid complaint where the commission concludes there is merit to the complaint, and yet the commission refuses to allow it to proceed to the tribunal. This instead forces the complainant to accept a settlement.
The Canadian Human Rights Commission can be slow in many cases. It takes an average of nine months for the commission to investigate its complaints. That does not include the complaints that are dismissed expeditiously because they're in the wrong forum or wrong jurisdiction, or they should go to another forum. The complaints that are valid often take longer than nine months to investigate. That does not take into account the fact that if the result of the investigation by the Canadian Human Rights Commission is that the matter is referred to a tribunal, you're looking at another nine to ten months in order to complete a hearing in front of the tribunal.
Finally, the human rights system has the authority to grant substantial remedies for the victims of harassment, but there is one hole in that legislation; namely, that the Canadian Human Rights Tribunal has no jurisdiction to award legal costs to a victim of harassment. That was set out in the Supreme Court of Canada decision in Mowat, which involved an employee who was sexually harassed in the workplace. The tribunal awarded her $4,000 in damages, but that did not go anywhere near to meeting the legal expenses she incurred, because she retained private counsel.
The concern is that victims are not accessing these particular forms of recourse because of the flaws in them, because there's no true remedy at the end of the day, and because the expenses of pursuing the matter would outweigh any possible recovery.
In conclusion, I suggest that one way to protect the victims of sexual harassment would be to carefully examine the systems of recourse to ensure that there is expeditious, effective, and fair recourse available to the victims of sexual harassment.