Status of Women Committee on May 28th, 2013

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you very much, Madame Benedict.

We're now going to the Law Society of Upper Canada.

Madame Bouchard and Madame Quansah, you have a total of 10 minutes. The floor is yours.

[Josée Bouchard, Equity Advisor, Equity Initiatives Department, Law Society of Upper Canada]

Thank you, Madam Chair and members of the committee, for inviting us to participate in your meeting.

I also want to thank the representatives from the Women's Legal Education and Action Fund for the important information they presented on the impact of sexual harassment, especially on women. I will not repeat their presentation. Actually, I want to add to what they have said.

I will now switch to English, but I am happy to answer any questions in either French or English.

What I would like to do today is to talk to you a little bit about the Law Society of Upper Canada, what we do and what the equity initiatives department does. I would like to talk to you about a guide that we have developed on preventing harassment, discrimination, and violence in the workplace, and more importantly, talk to you about the model that the Legal Education Action Fund mentioned or referred to, which is our discrimination and harassment counsel, because it's a fairly innovative model. Although it has been in place since 1999, it has actually been quite effective.

The Law Society of Upper Canada is the regulator of the legal profession of both lawyers and paralegals. We have 44,400 lawyers in Ontario and about 5,000 paralegals. The equity initiatives department was set up in 1997, or shortly thereafter, to try to promote equity and diversity in the legal profession. Part of the work we do is to develop model policies for the legal workforce and provide research for the legal workforce, so they can in turn promote equity and diversity.

In January 2012, as part of our mandate, we adopted a guide on preventing harassment, discrimination, and workplace violence. The guide basically provides templates or model policies for the legal profession. Law firms can use the guide and the template policies to adopt their own. We know that they have done so. The guide also provides procedures that could be set up in law firms to address harassment and discrimination.

Now we note that the Treasury Board has adopted a policy and procedures to address sexual harassment, and that is an extremely good first step. Our guide talks about other practices that could be implemented to try to address and prevent harassment in the workplace. For example, we think that the policies should apply not only to all employees but also to behaviour that is directed to employees by customers or clients. Because the responsibility of employers is to ensure that the workplace is respectful, it is important to also deal with behaviour that comes from the outside.

We also emphasize the fact that all supervisors, or anybody with supervisory authority, has a responsibility to address harassment or sexual harassment in the workplace, whether it be informally or formally. We also believe that there should be informal and formal processes in place to address sexual harassment, and those would include, as far as the formal processes go, having access to internal or external investigators or mediators.

We also believe that complainants should be reminded of external avenues of recourse, including the Canadian Human Rights Commission. I know that LEAF has mentioned the difficulties related to the Canadian Human Rights Commission. We do not disagree with LEAF, but we nevertheless think that complainants should be entitled to proceed with their complaints in multiple avenues. An employer's responsibility to address sexual harassment is not lessened by the fact that an employee would go elsewhere to try to address the issue.

It's also good practice to communicate the policies to all employees, but also to make sure that everybody receives an education program on harassment and discrimination.

I want to talk about our discrimination and harassment counsel program. It was set up in 1999, but it has been an extremely effective program for the legal profession. We believe that what is extremely effective with procedures related to sexual harassment is to ensure that complainants have multiple avenues of recourse. Internally you may have advisers who were appointed to provide confidential advice to employees.

In the case of the discrimination and harassment counsel program, it was set up as an independent program to provide advice to members of the public, lawyers, or paralegals who believe they have been subjected to harassment or discrimination by a lawyer or a paralegal.

The program really acts as an ombudsperson type of program. So the DHC, as we refer to the discrimination and harassment counsel, confidentially assists anybody who may have experienced discrimination or harassment by a lawyer or a paralegal. The services are offered free of charge to anybody in Ontario who may have suffered harassment or discrimination by a lawyer or a paralegal.

The program is actually funded by the law society. Its cost is about $150,000 a year, and it operates separately and independently from the law society. So it is really a program that operates at arm's-length, and we do believe that if this weren't the case, the program would not be as effective.

The current DHC is Cynthia Petersen, and she is a very senior lawyer in Ontario, extremely well respected, and well versed in the area of equality and sexual harassment. She is also bilingual and provides services in French and English. We also have two alternate DHCs, Lynn Bevan and David Bennett, who offer the services when Cynthia is unavailable. They work part-time. They basically work from their offices and they invoice the law society on a monthly basis.

What do they do? Usually the discrimination and harassment counsel will identify issues. If someone approaches them, they'll identify issues. They'll clarify the issues with the person who has approached them, and they will provide options, either by filing a complaint with the law society under the rules of professional conduct, or going to the Human Rights Tribunal in the case of Ontario.

The DHC does not investigate complaints. However, the DHC has a mandate or the power to either mediate or resolve issues informally. We find that is one of the roles of the DHC that is particularly successful. A number of issues are dealt with confidentially by the DHC in an informal way. The DHC also provides education programs and assists law firms in developing their own procedures and policies, if required.

In closing, I will provide you with some statistical information we have from the discrimination and harassment counsel. She reports every six months to the law society. She basically reports data and the types of cases she receives. In 2012 she produced a nine-year report of data that ranged between January 2003 and December 2011. During that time she had received about 515 complaints against lawyers, three complaints against articling students, and since 2008—which is when the law society began regulating paralegals—she has received about six complaints against paralegals.

Of these complaints what is interesting is that about half, or more than half, have been made by women. So we know that this service is particularly important to women. About half of the complaints are about sex discrimination, and of the complaints about sex discrimination about half are about sexual harassment.

Sex discrimination is actually the most common complaint that the DHC program receives, and of those complaints about 87% of the sexual harassment or sexual discrimination complaints that she receives are made by women. A number of the complaints that are not made by women—

[The Chair, NDP, Lysane Blanchette-Lamothe]

Ms. Bouchard, you have 30 seconds left.

[Josée Bouchard]

—are made by men who are complaining about other men sexually harassing women.

That gives you a sense of the types of complaints she gets. She also gets a number of complaints on disability, race, sexual orientation, and the other grounds under the Human Rights Code.

We encourage organizations to expand their policies on sexual harassment to address those grounds. I thank you very much for listening to me.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you very much, Madame Bouchard.

We are now going to our first round of questions, starting with Madame O'Neill Gordon. You have seven minutes.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Thank you, Madam Chair, and a special thanks to the witnesses who have joined us today.

We certainly have done a lot of work in this area and strongly feel that individuals should know that they have a respectful workplace, free of sexual harassment each day as they go to work.

This is directed first to the LEAF. Your organization intervenes in court cases, but you also provide access to educational tools and training for youth, some of which address the issue of sexual harassment in the workplace. When Canada Post appeared before us earlier in this study, they noted that after a major awareness campaign, they saw a rise in the number of workplace harassment claims, but not in actual incidents of harassment. This was followed by a gradual and continued decrease in the number of claims.

We learned two things from this example. First, the awareness campaigns can have a major impact on the reporting of sexual harassment in the workplace, and second, pure numbers do not always tell the full story, as higher numbers can indicate a willingness to resolve these issues through existing channels.

Could you comment on the impact of awareness campaigns on the reporting of incidents of harassment in the workplace?

[Dr. Kim Stanton, Legal Director, Women's Legal Education and Action Fund]

Thanks for the question.

I don't have statistical data for you on that. What I can tell you is that as an organization, our experience is that awareness campaigns, simply put, do tend to increase awareness, and particularly of the mechanisms that are available.

This gets back to a point that we made in the brief. Essentially, when people are aware of what the channels are that they can use to report, and when they realize that those channels are there, they also feel as though their complaint will be taken seriously and that it is worth reporting. Over time that tends to impact the culture of an organization, to show people that harassment is not acceptable within the organization. It really is helpful, I think, when the management of an organization brings in a training model like that. It shows from the top down that there is not going to be tolerance for harassment and that the culture needs to change within the organization if it's there.

Thank you.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

We saw with a lot of other witnesses that training was very important. I'm wondering, what about the impact of training? Have you been able to identify a relationship between training and a decrease in incidents in the workplace? If so, what is the best way to measure this?

[Dr. Kim Stanton]

This is the difficulty. I think you noted from our brief, and perhaps from other witnesses you've had before you, that there aren't good numbers anymore on the rates of sexual harassment in the various workplaces.

We have the study from Corrections Canada, I believe we cited, which did have people report specifically on sexual harassment, and that was helpful in terms of numbers. When you hear from the law society...they've been able to parse out the number of complaints with respect to sexual harassment. But, in general, we don't have quantitative data for you with respect to the amount, in the first place, of sexual harassment and/or the changes that occur in workplaces where training takes effect.

I'm sorry not to have those numbers for you. What I can tell you is that we certainly encourage organizations to implement training, because we do believe that, overall, it tends to decrease, over time, the culture of harassment in organizations.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

As you said earlier, this training gives them a means of knowing where to go and who to contact, and so that gives them much more confidence in knowing that these things are available for them.

[Dr. Kim Stanton]

Also, it's to know that the acts themselves are unacceptable from management's perspective, in the first place, which I think is very important. A number of the organizations that you've heard about so far have situations where people think, because there aren't incidents being reported, that there's no sexual harassment, when, in fact, the opposite may be true, because people are afraid to bring the complaints. Women, in particular, are afraid to bring the complaints because of a likely effect on their careers. They don't bring them.

So that's the conundrum.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

My next question is for the Law Society of Upper Canada. I was wondering if you maintain statistics on the number of complaints related to sexual harassment in your workplace.

[Josée Bouchard]

Do you mean in our internal workplace?

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

Yes.

[Josée Bouchard]

We do. We have a workplace of about 500 employees and we get maybe one or two a year.

[Tilly O'Neill-Gordon, Conservative, Miramichi, NB]

That's a good record. What do you attribute that to?

[Josée Bouchard]

I'll repeat a little bit what LEAF has said, because we do mandatory education programs for all new employees and we do mandatory education programs for all managers. We make sure that they know they are responsible for immediately addressing harassment or discrimination when they know about it, either in a formal or informal way. So our managers tend to address issues very quickly and informally, which we find is the best way to deal with the situation.

One thing that I think is also important in our policy—and I encourage organizations to do this—is to have clauses that say that an employee who has been subjected to harassment or discrimination may be accommodated during a period of investigation, if there is an investigation. That shows a commitment to protecting the employee, either against retaliation or against a poisoned workplace environment. I think that's an important component of the policy, and also an important message to the employees.

[The Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madame Bouchard.

[Josée Bouchard]

I think they believe that they will—

[The Chair, NDP, Lysane Blanchette-Lamothe]

Sorry to interrupt you once again, but your time has expired.

Thank you, Madame O'Neill Gordon.

Madame Mathyssen, you now have seven minutes.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Thank you very much, Madam Chair.

Thank you very much to all of our witnesses here today. You bring important information. I think, despite the best of intentions, that it's very clear that workplace harassment is still very much a reality. It's part of a culture that doesn't seem to be abating.

My first question is to LEAF. You talked about paper promises for employment equity. It would seem that, in many ways, the federal government has abandoned employment equity, the idea of making the workplace more diverse and more accessible to a number of different groups. I'm wondering how that kind of affirmative action policy would help, in terms of the hiring policy, if we want to address harassment. How would it change the situation that we're currently facing?

[Ainslie Benedict]

On paper, the system is there. The forms are there. We have all seen them with the boxes we can tick off to self-identify over the whole spectrum. Once again, it's not just having the system in place. There has to be a commitment to doing that, and to making sure that people have an opportunity to move once they are in the door.

From an anecdotal perspective, I think that if we were talking 10 years ago it would be quite different from now. In the deputy minister and assistant deputy minister ranks there are more female faces, certainly, than you would have seen in the past. So at some level some women are making their way there, but the comments were broader than that. It's not just women. It's all the other minority groups. It's getting people into the public service, letting them get in the front door, and that's not the only step. That's where I'm saying that once there are minority groups kept at a certain level or not given many opportunities they need to progress, the discrimination takes place in an almost systemic way.

Ms. Stanton addressed this. I don't believe LEAF is proposing any specific quota system. Anything like that at all is just revisiting that concept that was introduced many years ago about looking at minorities, looking at the challenges that are faced, because they still do exist.

[Dr. Kim Stanton]

You asked how the policy would change a culture of sexual harassment if it were properly implemented. In general, as you see more women attaining leadership positions in organizations that also adopt the training models that have been discussed and the types of policies that both of our organizations today are talking about, you will, over time, see incidents of harassment decrease because they simply won't be tolerated anymore, and of course, because the power differential shifts in an organization when it is more representative of the workforce overall rather than representative of only one kind of group in management and only one kind of group at the worker level.

Thank you.

[Irene Mathyssen, NDP, London—Fanshawe, ON]

Okay, thank you very much.

This is a question for both LEAF and the law society. It has to do with a program in Ontario. I think there are some efforts to expand it. It's called Neighbours, Friends and Families. Essentially, it provides comprehensive education and training for employers and employees in an organization. The idea is to help employers understand that harassment and violence are a reality within a workplace, and it compels employers to provide counselling, directives for counselling, and safety training. The thought is that if an employee's experiencing violence outside the workplace that could very easily come into the workplace.

Are you aware of this particular directive? Does it fit in, in a logical way, with an anti-harassment policy? Harassment is a form of violence, and does it make sense to provide training on all kinds of levels with regard to how we as an employer and employees address it? Is that something you'd like to see the federal government adopt, and go beyond Ontario?

[Ainslie Benedict]

I'll jump in first, and then perhaps Ms. Bouchard would like to comment on this as well.

In the summer of 2010 the Ontario government introduced its workplace violence and harassment measures under the Occupational Health and Safety Act. There was a huge response, a huge increase in public awareness of harassment in the workplace. While that legislation was introduced specifically because of violence, the third occasion of an upset partner killing a former partner in a workplace had occurred in a hospital—there were three hospital cases over about 14 years—and the government said they had to do something.

The legislation was a response to that. It said people cannot be aware of a problem and do nothing. We knew these people were very upset. We knew the woman's well-being was in jeopardy, that it was not a safe environment for her. Nobody did anything because of confidentiality, privacy. Nobody knew what to do, so they did nothing, and people ended up dead. So that was that legislation, the awareness of an employer's obligation to provide a safe and harassment-free workplace. It's harassment under the human rights legislation. The broader definition is captured federally as well now. It's any form of bullying, which is the word these days, and it's capturing all of that. The definitions of what is offensive and what is caught by the policy are very broad. Individuals are aware of it. Employers are aware of it.