Canadian Human Rights Commission
Presentation to the
House of Commons’ Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities
Wednesday, February 28, 2018
CHECK AGAINST DELIVERY
Thank you for inviting the Canadian Human Rights Commission to take part in your study into Bill C-65.
I am accompanied by Fiona Keith, Senior Legal Counsel at the Commission.
This bill is a positive step towards preventing harassment, and sexual harassment, which for too long, have been in the shadows. However, this bill is only one component in addressing this pervasive and deeply engrained societal issue.
While we support the creation of a proactive regulatory regime as one step in creating a culture of change within all federal workplaces, we have concerns about the process as envisioned.
We have three main messages:
- One. To end harassment, and in particular sexual harassment, victims must feel safe, empowered and supported. This bill does not go far enough in this regard.
- Two. More clarity is needed and too much is being left to regulations.
- And three. Access to the remedies in the Canadian Human Rights Act is needed to address and remedy harassment for victims. Any new process must complement — not limit or delay — access to the protection of the Canadian Human Rights Act.
However, no matter the proactive regime, where there are power dynamics, there will be power imbalance…
…and where there is power imbalance there is often harassment.
The Commission has over 40 years of experience in human rights and harassment complaints. We have heard, time and again, that victims of all forms of harassment, in particular sexual harassment, must feel safe, empowered and supported in order to come forward. When there are systemic power imbalances in the workplace, this process – ANY process – can be intimidating. If it is too complicated, too intimidating, too embarrassing to come forward, victims will tolerate the intolerable.
We encourage the Committee to ensure that Bill C-65 reflect a “no wrong door” approach. It should be amended to ensure that the legislation is clear on its face that a victim does not have to go to their supervisor. The reality is that harassment often results from power dynamics, and often involves people in supervisory positions or their management colleagues.
We must empower those who are harassed by making sure they have the power to choose where to go. And when they do make that choice, they have to know, at minimum, that their livelihood is protected.
And when they do come forward, ask yourselves how will the victim feel in this proposed process – will they feel safe? Will they feel supported? Will they feel protected? Will this process empower the victim, and disrupt the power imbalance that enabled the harassment?
And how will this process deal with intersecting grounds of discrimination?
How will it help people who are facing multiple forms of discrimination, or who are facing widespread systemic discrimination reflected in a hostile or toxic work environment?
We also have questions about how this bill will apply to smaller employers, including MP offices, small trucking companies or local radio stations, and some First Nations employers. What additional support will be made available to ensure their compliance?
We support the creation of a proactive regulatory regime that will create a positive obligation on employers to foster an environment that is respectful, inclusive and safe.
When harassment occurs, a victim needs a clear, impartial and flexible process that is effective. To ensure this, we suggest:
- This bill should be amended to make it clear that the right to a workplace free from hazards includes a right to a workplace free from harassment as is currently provided for in Part III of the Canada Labour Code. You shouldn’t have to have an illness or injury to make a complaint of harassment.
- A victim should have the choice to seek redress immediately with the CHRC before or at any time during their internal complaint process at their respective organization.
- The burden on the victim should be minimized as much as possible. For example, if a parallel human rights complaint is filed, the competent person’s report should be shared with the Canadian Human Rights Commission so that the victim does not have to start from scratch and retell their story over and over.
- The Commission does not believe that a definition of harassment is needed in the Canada Labour Code but should one be included, it should be non-exhaustive, inclusive and consistent with human rights law.
- The Bill must make it clear that the Labour Program and employers have obligations to report on the effectiveness of the process, including reporting data related to human rights.
My final message is this: human rights are not only a priority, they are a quasi-constitutional legal obligation, and must be available equitably to all. These are cornerstones of access to justice.
Any legislative proposal should be a complement to the redress-based protections guaranteed in the Canadian Human Rights Act. Whereas parallel processes that apply the CHRA, such as the Federal Public Sector Labour Relations and Employment Board are empowered to provide remedies under the CHRA this is not the case in Bill C-65.
Because of this, any victim who seeks remedies, for instance for lost wages, damages for pain and suffering, and wilful and reckless behaviour, may choose to engage in two processes simultaneously — the CHRA and the proposed internal process.
It must be made clear to people — that each system serves a different purpose. The proposed information Hub and 1-800 line must provide information that explains all the options, including the right to file a complaint under the CHRA.
In conclusion, addressing the pervasive nature of harassment and sexual harassment requires that we disrupt the power imbalance inherent in harassment. It means empowering the victims.
We would like the Committee to ensure that this process does not limit human rights protections; but rather, that it complements such protections guaranteed to all Canadians in the Canadian Human Rights Act.
The Commission will be providing a submission describing our mandate, our complaint process and our recommendations for technical amendments.
We will be happy to support the Committee further as it continues this important work.
I welcome your questions.