JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 24, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Order, please.

Welcome back.

Ms. O'Brien, I apologize. We had a steering committee meeting that went on a little later and I find that it's necessary for us to stretch a little bit before we start again.

• 1010

This morning we're still on S-5, amendments to various statutes, including the Canadian Human Rights Act, with respect to people with disabilities.

From the Disabled Women's Network, DAWN, we have with us Eileen O'Brien, who is the chair of DAWN Canada. Welcome, Eileen. I know you have some comments. Then we'll have some questions.

Ms. Eileen O'Brien (Chairperson, Disabled Women's Network (DAWN) Canada): Good morning. I'm coming from Vancouver and I can't believe the brightness. It's like snow blindness or something, and it's beautiful to come to—

The Chair: It's warmer here today than it is in Vancouver.

Ms. Eileen O'Brien: Yes.

The Chair: That's a little-known fact. It's usually the case.

Ms. Eileen O'Brien: Right.

I wanted to thank you very much for inviting us to this meeting with you about this bill. We're not just responding to it because it is now before you as an amendment to the Human Rights Act and the Criminal Code; we have been working on these issues for a long time. Obviously you know that these are issues very much related to our everyday lives, and I am hoping you will soon have our brief. It's just about the same brief as was presented to the Senate committee, and I wondered if people had an opportunity to read that.

Again, this was short notice. We were given short notice to attend and the lawyer who has been attending the hearings was not able to come, so you have myself, the chairperson of the Disabled Women's Network of Canada. I have been that for the last four years. We have begun to be involved in the whole legal process, I would say, for the first time in history. I think the most important part of this act to us is its place in history.

Last summer we attended the international conference on women with disabilities, and as you well know, Canada is well respected and looked up to for leadership in the human rights area. We're very proud of that and we still have...I think you probably know this, but we're in the very beginnings of writing in and determining the way the Human Rights Act is interpreted and the way we establish how we're going to deal with discrimination in Canada.

DAWN Canada has presented a brief, not on the Criminal Code of Canada but on the duty to accommodate and the undue hardship section of the duty to accommodate. We have supported the position of the Canadian Association of Independent Living on the amendments to the Criminal Code. You've heard from them. And we do support their suggestions. They sound really good. We have not had the opportunity as a national group to discuss these issues. So through the help of the court challenges program we have done some work on the duty to accommodate.

One good thing about having me here is that I think I can offer you some history in terms of where we are at as women with disabilities. There's no question about it; you must understand that we are a very disadvantaged group and that we are experiencing discrimination daily in this country. You need to know that as women with disabilities we work with the Council of Canadians with Disabilities—and I'm also on the executive of that group—but as women in the disability community, we are new, I would say, to having a voice in that arena.

The Council of Canadians with Disabilities has worked hard to incorporate amendments under the area of duty to accommodate into the Ontario human rights act. DAWN Canada has also worked with LEAF on many legal cases and has come to the position that we are worried about the incorporation of the duty to accommodate, about establishing it at this time in history in the amendments of the Human Rights Act.

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I think LEAF has probably made a really good argument, and their paper is excellent.

We are concerned that the issue of duty to accommodate puts us in a position where we are not equal; the equality is not substantive. What we understand from that—and we've had some meetings to try to understand it—is that it's not just equality. We have to understand that these issues go before a court, and the court has only come so far in understanding what discrimination is. When we talk about it as people with disabilities, men and women in the council, their argument is we can only achieve what they're willing to give us.

We are going to push for duty to accommodate on the principle that we are going to get some benefits for people with disabilities. DAWN Canada says we understand there will be benefits from the duty to accommodate, but we know when we start off as people who are different and have to be accommodated by those who have privilege and who have done the discriminating, we don't have full equality.

I just wanted to point out that we're in the middle of this discussion. In October we are meeting with the Council of Canadians with Disabilities and all the players in this discussion. As I said, we've come into this discussion recently. These arguments about how to actually read in and establish the Canadian Human Rights Code have been going on for a long time and we are new to that.

You must understand that we are of the position that there is a significant problem with using the duty to accommodate. I can't make the argument as well as LEAF has, but every person, every woman with a disability that we talked to, understands that being accommodated on the basis of race or sex would be abhorrent. When we say we are being accommodated because we have differences, it's important to understand that this is not what we want. We want full equality.

We also know that the people on this committee are committed to human rights and are in support of many of the benefits that will come to people with disabilities. We also know that, practically, this is a decision you have to make and that you'll make it probably understanding this dilemma. We don't have any clear answers on this dilemma within the disability community, and DAWN Canada is happy that you're proposing these changes that will benefit people with disabilities. We're concerned, however, that going along this road of accommodation at this time in history will restrict us.

Moving on to the undue hardship section and the duty to accommodate, we object to the issue of cost being incorporated into that. It's clear in our brief, but I wanted to say something from my perspective and our perspective in our community.

We know that right now in this country there is a rising anti-disability sentiment. With people's growing financial insecurities, we are at great risk. Already we are seeing unions administering their own disability funds, hiring cut-rate insurance companies, and having their own members call in slackers.

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The teachers' union in our province—I live in British Columbia—advertised in a newsletter to police their own people on disability pensions to keep down the long-term disability benefit payments of their members. More and more associations are administering their own funds in this way.

A growing sense that people with disabilities are a burden to society is being reflected in cutbacks to services all over this country. We are extremely frightened in this climate that any limitation on the duty to accommodate will put severe questions in the hearts and minds of those of us seeking redress under this act and those wondering whether the act has any weight to force compliance if they have any way out. We are worried that economics will determine how far they are required not to discriminate. We think this is an issue and a matter of political will and that cost is just another word for inequality.

I've just written a couple of things here. Do you ever sit and calculate the cost of adapting to your own needs those that haven't been classified as different? This is the social construct of disability that I'm talking about. Have you ever calculated the cost of the electric lights that light up billions of office spaces like these for meetings? Imagine the cost as you look around at the night lights of Ottawa. Blind persons would have a difficult time under this legislation. If there were more of them to be considered the norm, your sighted accommodation would seem quite a prohibitive cost.

What about those of us who bring our own chairs with us? I sometimes use a chair but didn't this time. Imagine the cost of accommodating your need to be seated with one of these expensive chairs that we're sitting on now—not just once or twice in a lifetime, as we do with wheelchairs, but everywhere you go you expect your extreme verticalness to be accommodated: at the bus stop, in a theatre, in meeting rooms, at public events, restaurants. Wouldn't you consider it odd if there was legislation saying that something you needed to function, to participate as a citizen, was judged too costly?

As people with disabilities, we're disabled only to the degree that society sees us as different. A person who is deaf, a person who can't see, a person who needs flex hours because of fatigue issues, is not disabled if they are not prevented from participating in society by the barriers presented by a lack of political will. I would say that the cost is too great in our society to all of us as we become more diverse, as our population ages, as work-related injuries rise, not to amend our Canadian Human Rights Act to eliminate undue hardship of cost.

I'm thinking of a friend who is a woman, a federal employee here in Ottawa in a responsible position in government, who has multiple sclerosis. Her job was immediately reclassified as soon as she took time off to go to the hospital. It's really of concern to me when we read what our human rights are and what we intend by them. It gets very frightening to see that accommodation...when it comes down to cost in the light of fiscal restraint in government, it's very frightening to see people like this, the women we hear about on the front lines who are at risk under this section on cost.

I don't have much more to say. You probably know the statistics about people with disabilities and our disadvantages, especially women with disabilities. We are absolutely adamant that we want the right to be participating citizens. We feel and are afraid that these sections of undue hardship and accommodation are limiting our equality in Canada.

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I'm sorry that I won't be able to answer any of the really detailed legal things, but from our experience and our work, I can answer some questions.

The Chair: Thanks, Ms. O'Brien.

Mr. Forseth, do you want to go first?

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Thank you.

You make a very eloquent argument, but I think you would agree with me that financial resources are limited at some point. I would like to hear from you about how far we should go, or can go, in the issue of cost. I assume you want the whole reference to cost completely deleted from the bill, so then where would you say is the boundary line? What do we do?

I think you must also agree that municipalities are changing their building codes quite greatly, and the way buildings are designed now is quite different from the way they were designed even just 10 or 15 years ago. There's a continuing push to make building designs to accommodate all types of individuals with different needs.

Perhaps you could tell us a little bit about how that agenda is working and also about the business of retrofitting. It's especially difficult to retrofit old historical buildings and so on, because of their historical integrity, but even on Parliament Hill lots of effort has been made to retrofit, to accommodate.

Maybe you can address those two issues. Obviously at some point there is a boundary of cost. And you talked about change in society so that buildings and just the way we go about things is.... It's not only a technical thing; I take it you're looking at more a societal attitude thing. Maybe you can address those two points.

Ms. Eileen O'Brien: Cost gets read into almost any decision. Placing it in the act is a big mistake. It weakens any hope of people with disabilities achieving success in a case, and it creates confusion about whether or not the act will be enforceable.

When you say new buildings are being adapted, it's directly related to attitude. There are still buildings being made that we don't get consulted on, that people don't get consulted on. There's been a great deal of consultation on the airport in Vancouver, and there are still some problems, but that was a good example of some effective attitude and intention to make it accessible.

What we want from the federal government is a principled, exciting statement of equality. That's what we want. We're afraid that incorporating these words and conditions weakens the statement, especially when we know it actually means the people who are doing the discriminating are discriminating just as they would discriminate against immigrants or whoever; it's not comfortable not to discriminate.

You have to have an incentive. You have to say, “This is our value as the federal government. This is what we expect.” And of course, when a judgment is read or understood, there should be some reasonableness attached to that. For example, you're not going to expect a building that can't be adapted, or there should be a timeframe, or something.

To say we can have equality but it's based on cost is extremely different from saying we have equality. Do you understand? It's a separate thing. We're not talking about being radical. We're talking about the federal government and corporations that are controlled by the federal government.... We don't want a woman with MS to be fired because her job is reclassified. We want a statement to say that as we age or as we change, we will have an attitude within the federal government where we know we are going to have the same rights as anyone else.

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The people who discriminate against people with disabilities, who build new buildings and don't make them accessible, who are employers and don't want to have people with disabilities be employed, are the same people who historically would not hire people of colour because their clients were more white. It's the same thing we find, that the discrimination we face is not cost; it's attitude. It's the principle of the matter, and I would say, given the history of human rights, had cost been an issue in the integration in the south in the school systems, it never would have happened, or it would have happened differently from state to state or city to city.

I know this isn't exactly relevant, but the city transportation in Toronto or Montreal is absolutely abhorrent. There doesn't seem...in fact, the incentives to change it are fewer. In the subway systems now, there are people with disabilities using their scooters, throwing their scooters onto the escalators to get down, and there are absolutely no plans to change that.

The subsidies to taxis for adapted taxis have stopped. The federal government money, the $5,000 taxis got, has stopped. Things are changing, and yes, based on cost.

As to the attitude, if the principle is there, then in time we will all want a society that incorporates diversity. It's a wonderful thing. It's not a matter of expense; it's a matter of the kind of society we want. We're not talking about immediately putting in tons of money; we're talking about eliminating discrimination.

I don't know if I've answered your question.

Mr. Paul Forseth: Thank you.

The Chair: Thanks, Mr. Forseth.

Madame.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Thank you for being here and for your comment that the snow is beautiful.

I have read your brief and I would like to talk to you about your view of the composition of a human rights tribunal. My reading suggests that you are proposing quotas. I must admit that, personally, I am a little uncomfortable with quotas. So I would ask you to please explain the reasons for the model that you are proposing, taking into account the fact that such tribunals will not hear only complaints from the disabled. Other people will appear before this tribunal.

[English]

Ms. Eileen O'Brien: When I read this, it sounds like the way we go for a project for the government. We always ask for more than what we get.

What we know is that we're left out, and we know these tribunals often don't have the perspective of women and we know they don't have the perspective of women with disabilities.

I would say that this is not at all rigid. What we want is participation. We want some representation so that our people are supported and that people understand our issues. To want to be that 50% is to ensure that voice. That's all.

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The Chair: Thank you.

Mr. McKay.

Mr. John McKay (Scarborough East, Lib.): The government is constantly asked to do gender analysis on legislation. I've been living and working with this legislation for a number of weeks now, and I'd be interested in your comments as to what you see in this legislation that is uniquely discriminatory against women, if anything at all.

Ms. Eileen O'Brien: I'm really bad at statistics. That's why I wish the lawyer was here.

I can get you an answer to that.

As for what is discriminatory, jobs that women do are very disposable jobs. A lot of jobs that women do in the federal government are not positions of power. Chances are there's less protection under these kinds of positions that the majority of women have.

We know that if it's going to cost so much to adapt a person with a disability, it's much more reasonable to adapt a person who's in a position to have independent thinking and the power to implement things.

If you became disabled, it would probably not be too expensive.... They would do quite a lot to make sure you got to make your contribution. If you needed certain adaptive equipment, flex hours, or whatever....

Women's work isn't as valued. Women aren't often trained to be in positions of power, so when they become disabled they're very often dispensable.

Mr. John McKay: You comment is really more of a societal comment rather than one that is unique to the legislation.

Ms. Eileen O'Brien: I think legislation that builds its cost into the—

Mr. John McKay: Your comments about the cost and undue hardship would apply. I'm asking whether it would apply equally to a man with MS as it would to a woman with MS, to a man in a chair versus a woman in a chair.

Ms. Eileen O'Brien: I would say absolutely women are going to suffer more because of this particular section, mostly because of the reasons I gave.

Yes, men with disability as well...but from my perspective the gender part does come from the disadvantaged position of women.

Mr. John McKay: You quote some statistics on page 3 of your material. They basically have to do with the health activity limitation survey, and you describe a variety of percentages. Basically the argument is that women's income is less than men's.

On a Canadian societal basis, I believe women's income has gone from about 58% of men's to about 73% of men's.

Ms. Eileen O'Brien: It was on the news last night.

Mr. John McKay: Yes, that's right.

Is there a difference in that percentage from a society basis to the disabled community basis?

Ms. Eileen O'Brien: I don't think we know. These statistics of people with disabilities comes from the health survey, and as far as I know we haven't had any recent employment statistics. I don't know the answer statistically, but we do certainly know that women with disabilities have a great deal of problem being employed.

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Mr. John McKay: Certainly when you have a disadvantage and you have another disadvantage, it exaggerates it. I'm just curious as to what—

Ms. Eileen O'Brien: I should make a point of getting you that information. As I say, I'm limited by my experience and I'm not very good on the recent statistics.

Mr. John McKay: Thank you.

The Chair: Thank you. Are there any other questions, colleagues?

Mr. Telegdi never lets us down.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you, Madam Chair.

Governments that are trying to balance their budgets have been withdrawing from areas of service. I know the province of Ontario got out of non-profit housing, and the feds are also withdrawing from it.

I recall a woman who was disabled and was a real crusader during my municipal career in getting accessible housing, particularly in co-op housing. A number of the co-ops she was involved with, particularly Shamerock Cooperatives, went to great lengths to make new co-ops, or part of them, accessible so that people could come out of institutions and live in the community, so that they could have independent living.

I think of that as an example, and I also think of the cutbacks to transit for the disabled. Has your group been watching this and have you any overview on it?

Ms. Eileen O'Brien: We did a study for Status of Women on the effects of the Canada health and social transfer on the services to women with disabilities. There are no standards, so it's different from province to province, but specifically on housing it is very frightening to lose our co-op housing.

From our experience women, from cuts to hearing aids, to aids, to every area of their life, are beginning to fall down through varying attitudes at different municipal and provincial levels.

I haven't heard of any reprieve in the housing department. People are balancing budgets everywhere. As you know, people with schizophrenia and psychiatric disabilities are having a great deal of problem with housing and money for housing and are becoming a great percentage of the homeless on the streets. It's pretty frightening.

I don't know what to say except that I get it from my experience. We had focus groups all over the country, and there was a tremendous outcry from people saying their services were being affected.

Did you want more specific information about that?

Mr. Andrew Telegdi: Yes, I was wondering what kind of information the disabled community would have on the particular question.

Ms. Eileen O'Brien: On housing?

Mr. Andrew Telegdi: On housing, transit, and services in general.

Ms. Eileen O'Brien: Our brief has been held up for a year and a half by Status of Women. We're about to do a Freedom of Information Act request to get the information back from them. But yes, at the Council of Canadians with Disabilities we're also gathering information on it. I'll let you know.

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Mr. Andrew Telegdi: Okay, thank you.

The Chair: Thank you. As a point of information, you said you're about to do a freedom of information request to Status of Women. What would it be for?

Ms. Eileen O'Brien: When we do a contract with them they own the material. Unless they approve it for publication, it stays forever on the shelf. We have done all this research and can't get it. It's been a year.

The Chair: You didn't keep copies of it?

Ms. Eileen O'Brien: Oh, yes, but we can't distribute it or publish it.

The Chair: I see.

Ms. Eileen O'Brien: We can't show it to you. That's the problem.

The Chair: Have you made representations directly to the minister?

Ms. Eileen O'Brien: No, but we've been working with them. We will get it and we will distribute it. I think people need to know what's in it.

The Chair: Thank you.

Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Hopefully it will be a brief question and a brief answer.

I've been paying attention to the Criminal Code amendment. For persons who have disabilities, physical or mental, the proposed section creates a kind of protective bubble around the disabled person in relationship to parties on whom they are dependent or who have trust or authority.

This kind of offence, which essentially prohibits communicating, counselling, or inciting sexual contact, impinges upon the existing freedoms of expression of Canadians who are both disabled and non-disabled. So in terms of our rights and liberties there would have to be some good justification to impinge upon this existing freedom, the freedom of expression.

I'd like to ask you, who presumably are familiar with chunks of the field dealing with parties who have disabilities, if in your view the problem identified by this amendment is serious enough to justify the curtailment of the freedom of expression. I don't think we've had a lot of evidence on this, but how significant is the problem of parties who are in positions of trust counselling and inciting sexual contact with persons who have disabilities?

Ms. Eileen O'Brien: We haven't had any funding or ability to actually address this proposed section of the bill, so we haven't gone over it. We've had some discussions with CAILC, the Canadian Association of Independent Living. Their brief—did you read some of their things? Yes.

As women with disabilities we know that sexual assaults by people in positions of trust are high. That's what we hear from women. We counsel women. We've done videos to help women in disclosure; we worked on that with the Justice Institute in Vancouver. Certainly DAWN Ontario has done work on sexual assault of women in dependent positions. We know it happens, but I don't know what I can do at this point to help you, because we haven't looked at that proposed section. I'm sorry about that.

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Mr. Derek Lee: Let me frame it just a little bit closer then to where the rubber hits the road.

You are a person with a disability.

Ms. Eileen O'Brien: Yes.

Mr. Derek Lee: Without getting into your own personal circumstances, I would suggest that if you were married or had a partner, if you relied on the spouse or the partner and there was a position of trust—in most relationships that does exist—this particular proposed section would drive a wedge between you and that person, in terms of freedom of expression, being able to communicate, because the proposed section doesn't exclude normal relationships. It simply says “where there is a position of trust or dependency”, then one may not do those things—counsel, incite, etc.

Based on the fact you have a disability, are you accepting of the fact this proposed section will drive this wedge, potentially—it's a legal wedge—into those relationships? Are you satisfied that putting this protective plastic bubble around all persons with physical or mental disabilities is justified by the types of problems we have when some people do exploit persons with disabilities?

Ms. Eileen O'Brien: All I can say is that I don't know enough about what you're asking me, and I wish I did. As I say, we focused on what we could handle with the amount of consultation, time, and money we had. We haven't had that discussion, and I'm concerned that you find it of great concern and that we haven't come to you with a position on it.

I feel as if I should do some work and get back to you. In our conference calls with CCD and CAILC we did not discuss this, and that concerns me. I think sometimes these bills combine.... We're not legal minds. Until we get lawyers and ask them to point out specifically what that means and what it's going to mean to us....

I would like to, if possible, have a card from you, so that I can be clearer about the question and about what we think about it. Perhaps you could give me a timeframe, because I'm not really clear on how quickly you need this—yesterday, right?

Mr. Derek Lee: There's certainly a clock running on this particular piece of legislation.

Ms. Eileen O'Brien: We certainly can ask and get you something.

Mr. Derek Lee: In the event there is a response that ranks higher rather than lower on the Richter scale, the committee members would probably appreciate hearing about it. Thank you.

The Chair: Thank you, Derek. Thank you very much, colleagues.

Thank you, Ms. O'Brien. We were very pleased that you could appear before our committee.

Ms. Eileen O'Brien: I just wanted my chance to speak to you. I don't get a chance to ever see you all....

The Chair: Just say whatever you want.

Ms. Eileen O'Brien: I wanted to say that for the first time in I think 10 years we are hopefully going to be funded through HRDC, and possibly the changes with the Status of Women funding are going to mean that we will have paid staff for the first time. We have worked very hard on volunteer...except through project funding. It will mean that part of what we do is focused on these issues to enable us to contribute a lot more to these discussions.

Thank you and good luck with your work. It's a big decision and a big time in history.

The Chair: Thank you very much.

We'll adjourn now for a few minutes, until our next witnesses from the Canadian Labour Congress are ready.

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The Chair: We're back and we have with us someone that none of us has ever heard of: Nancy Riche, executive vice-president of the Canadian Labour Congress. Also here is David Onyalo, national representative, Canadian Labour Congress. The whole point today is to keep Ms. Riche here and not in Nova Scotia.

Ms. Nancy Riche (Executive Vice-President, Canadian Labour Congress): Whatever is done is done. I'm not from Nova Scotia. Actually, I'm a woman of the country. I probably could have voted. I put enough money into the campaign. I should be able to vote.

I can give as many personal donations as I want. We won't talk about how much the CLC and the other unions have put in. That's a different story.

The Chair: I know, and you'll have a memory lapse.

We know that you have some comments on this bill, and we're very happy to have you here. There'll be some questions afterward, so if you want to proceed, that's great.

Ms. Nancy Riche: Thank you. I will read the whole thing.

In terms of the evolution of the Canadian Labour Congress, I want to mention that David Onyalo, who is now a national rep in the women and human rights department, will probably soon become the national director in the anti-racism and human rights department, although it's hard to say before the appointments are finalized. I think that speaks to the changing work of the labour movement in terms of trying to work with communities and deal with diversity at the workplace level. We're very proud of that recent decision.

I'll read the whole thing because it's very short and we haven't dealt with everything in the bill, so we can speak to our issues in the question and answer session.

On behalf of the 2.4 million members and their families, the Canadian Labour Congress welcomes the opportunity to make a presentation on Bill S-5 to the Standing Committee on Justice and Human Rights. As you are aware, this year we are celebrating the 50th anniversary of the United Nations Universal Declaration of Human Rights. This international convention should remind Canada, as a signatory to it and a defender of human rights, about the broad scope of these rights, which includes social rights, economic rights, and political rights.

Canadians' human rights are threatened if we have high unemployment rates, no universal access to health care, housing, education, and training in this country. In view of the work we do on equality rights in our communities and our public presence on economic and social policy issues, the CLC is seen as a strong defender of human rights of women, people of colour, lesbians, gay men, persons with disabilities, and aboriginal peoples—in fact, all equality-seeking groups. Together with our social partners and allies in our communities, we fight for progressive public policies on trade union rights, workers' rights, pay equity, employment equity, and immigration in order to advance the rights of all Canadians, including newcomers to this country.

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Given our commitment to equality rights, we have a history of fighting sexism, racism, anti-Semitism, homophobia, ableism, and all types of bigotry and discrimination. In our daily human rights work the leadership and staff of the CLC work closely with the CLC women and human rights standing committees, pay equity and employment equity advisory groups, and the visible minorities, aboriginal people, lesbians, gay men, and bisexuals, and persons with disabilities working groups.

This presentation will be in two parts. Initially, we will comment on the overall changes taking place in our communities and the critical need to have human rights legislation that deals with the reality of those struggling for individual and collective rights. We will then comment on specific areas of interest in Bill S-5, particularly duty to accommodate, multiple discrimination, and consequential amendments.

In the year we are celebrating the 50th anniversary of the Universal Declaration of Human Rights, it is important to remind ourselves that we are having these discussions within the context of evolving notions of individual and collective rights. As an example, progressive pay equity and employment equity legislation is being attacked by the political right. Their message is that pay equity and employment equity are about exclusion and not equality and that they encourage quotas, special treatment, and infringe on individual rights.

Tired of years of workplace wage discrimination, women have fought for pay equity legislation to redress the systemic barriers they face every day. The fight to end wage discrimination continues today. The Bell Canada versus the Communications, Energy and Paperworkers' Union of Canada, CEP, pay equity ruling made last week is a blow to human rights. This ruling does nothing to advance women's equality rights, but instead attacks trade union rights on representation and collective rights.

All members of equality-seeking groups, including aboriginal peoples, people of colour, women, people with disabilities, lesbians, and gay men are in the middle of a fight to end workplace discrimination through employment equity provisions and legislation. They face strong forces from the political right who successfully worked to repeal the Ontario employment equity law.

Frustrated with current human rights legislation, the gay community has had to resort to the courts to advance lesbian and gay equality rights. The inclusion of sexual orientation in human rights legislation, same-sex benefits, and equal access to employment benefits for lesbians, gay men, and their families are important issues that have not been addressed in all human rights laws across the country.

Members of equality-seeking groups are frustrated at the lack of progress in fighting discrimination through individual complaints and remedies. We only have to look at the backlog at most human rights commissions across the country. In order to eliminate the systemic discrimination faced by marginalized groups, we have been asking for human rights programs that offer systemic remedies. We have no human rights if the voices of members of equality-seeking groups are silenced and marginalized.

The CLC is also here today because we are concerned that progressive community groups are increasingly silenced because of underfunding. One simply has to look at the number of non-profit community organizations that have no resources to consult their membership and make submissions to the government backed by solid community support and research information.

On the areas of specific interest, it's important to say that while we are encouraged that the government has introduced amendments to the legislation in an effort to improve the Canadian Human Rights Act, we have been waiting for over a decade for comprehensive and substantial changes to the act and its administration.

In respect to Bill S-5, we will comment on amendments to the Canadian Human Rights Act and not to the amendments in respect of the Canada Evidence Act or the Criminal Code. Specifically, we will speak to the amendments on duty to accommodate, multiple discrimination, and consequential amendments.

In addressing the issue of duty to accommodate, we are aware that the courts have imposed duties and responsibilities for employers and unions through the Alberta Central Dairy, Gohm and Renaud decisions. We also know that the legal landscape on duty to accommodate is complex and constantly evolving. For example, I argued with the unions in favour of Renaud before we went to the Supreme Court as an intervener on the other side. That's just to tell you how complex this one is.

We are also aware of the discussions taking place within the labour movement and with our social partners about the pros and cons of individual and systemic remedies with respect to accessing workplaces, housing, education, and public services.

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The CLC and the Canadian labour movement have a strong history of working on duty to accommodate undue hardship issues. We have a policy and we have guidelines in this area. In addition, various affiliates and federations of labour have developed educational material and conducted training to assist union members in understanding our legal and union responsibilities on duty to accommodate.

In supporting duty to accommodate, equality rights, and systemic remedies, we do not give up our responsibility to represent all union members and defend our collective agreements. We ask that union and employer representatives negotiate workplace-specific agreements in those cases where duty to accommodate initiatives impact on the collective. We believe that in this way we can advance equality rights while protecting fundamental trade union principles of collective rights, collective responsibility, and union representation.

We're pleased by the inclusion of multiple discrimination in the act. This recognizes that many people face a combination of discrimination based on gender, race, disability, religion, and sexual orientation. We see this as an important first step towards recognizing the fact that our community is diverse and that the oppression and bigotry present in our society affect a wider population of those living in this country.

As you review the consequential amendments proposed under Bill S-5, we would like you to revisit the consequential amendments brought in as part of Bill C-64, changes to the federal employment equity legislation. These amendments dealt with sections 53 and 54 of the Canadian Human Rights Act, which specify the power of a human rights tribunal appointed to hear matters under this act.

We opposed the consequential amendments in our submission to the Standing Committee on Human Rights and the Status of Disabled Persons, the House committee that dealt with the employment equity bill, Bill C-64. Our position is that systemic discrimination requires systemic solutions such as employment equity, a position that has been supported by the Supreme Court and tribunals, including the Health Canada decision.

The consequential amendments brought in under Bill C-64 limit the power of the tribunal to order systemic remedies. Human rights tribunals and the Supreme Court have in the past recognized that systemic discrimination in the workplace requires systemic remedies to make workplaces more accessible for members of equality-seeking groups.

The most notable of these cases is the famous CN vs Action Travails des Femmes, which ordered CN to implement an affirmative action program with special measures to remove barriers faced by women in that particular workplace.

In conclusion, we would like the government, before the end of the year, to introduce a comprehensive review of the Canadian Human Rights Act regulations and guidelines. The review should also include a look at all existing legislation with a human rights and equality eye so that our laws can reflect the changing context of human rights in this country and internationally.

The review process should have a built-in across-the-country consultation and timeframes for completion. It is critical that the committee charged with the review travel throughout the country to meet with labour and community organizations in order for the process to be meaningful and effective. As part of this review the government should address the issue of how they can enhance the participation of members of equality-seeking groups at all levels of the political process.

We are asking therefore that this government immediately make a commitment that a substantial number of labour and community organizations representing equality-seeking groups will be included in all future consultations by the Senate and House committees. As you are aware, popular participation in the public policy decision-making process is an important cornerstone to democracy, one we have seen significantly eroded in recent times.

In celebrating the 50th anniversary of the UN Universal Declaration of Human Rights, it is critical that we do everything in our power to advance the social rights, economic rights, political rights, and equality rights as part of human rights for all.

Thank you.

The Chair: Thank you.

Mr. Forseth, do you have some questions?

Mr. Paul Forseth: In relation to this specific bill, perhaps you could clarify exactly which section you would like to see changed and indicate whether you have some specific wording that you're recommending. I take it this was specifically around the possibility of addressing systemic remedies, so could you zero in on that and be a little more specific?

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Ms. Nancy Riche: We didn't approach it from that angle; we didn't do it clause by clause. Let me just go through some of the stuff.

In terms of the duty to accommodate, for example, we could live with what's there now in terms of reasonable accommodation as opposed to establishing criteria. We understand that's a little risky sometimes, but in terms of the joint responsibility under the issue of duty to accommodate, it might make sense to just leave it as it is.

Certainly if we go to the extreme of what some of the business community employers are asking for, we would be very much opposed to that. We're not going to comment on what some people have said in their presentations, but I have looked at them. We'd be quite happy with that, to say the same.

Under the multiple discrimination, the ones we commented on, we said that was fine.

Under consequential amendments, we refer to our position on Bill C-64. When the tribunal gives an order to correct a particular problem, there is no place to go after that if it doesn't happen. We would want to see that changed to allow for something concrete if the employer does not accommodate, for example.

I'll let David speak on the whole area of systemic remedies as well. When we brought in the charter of rights, a number of progressive people were opposed to it at the time because it was based on individual rights and we in the trade union movement would put more store on collective rights, the membership and the community. However, it was passed, and now our complaints are mainly based on an individual making a complaint and the remedy to that individual.

We would like to see, as we've done with employment equity and are struggling very hard to do with pay equity but seem to be losing at this point in the courts, that in fact we establish a body of knowledge around a fairly defined group that has been discriminated against because of the system. I could go on at length about women, but I'm sure you know about that in terms of where women were hired, what was the value of their work, etc.

We're saying we need to find a collective response somewhere in the Human Rights Act. When an entire class or an entire group or a well-defined group has been discriminated against, how do you correct that for the entire group? We didn't put in the specific amendments.

I don't know if you want to add to that, David.

Mr. David Onyalo (National Representative, Canadian Labour Congress): Yes, I have a few other points.

There's a reason the Canadian Labour Congress would like to broaden this discussion. The context under which you are looking at the amendments to the duty to accommodate and to the multiple discrimination clause is that of a changing discussion on society with respect to the evolving notion of what individual rights and collective rights are. I'm not sure what your party is, but if you look at the debate that's taking place around employment equity, for example, what it really boils down to is whether employment equity, pay equity, infringes on an individual person's rights.

I think it's really important, in this year when we're looking at human rights and celebrating the 50th anniversary of human rights, not to restrict ourselves to a few clauses that you have undertaken to review. The position the CLC has taken is that it's extremely important that all the discussion has to be within the context of the changing nature of the struggles that are taking place in society.

As we indicated in our brief, it's not a coincidence that the gay and lesbian community has had to resort to the courts to try to make some changes under the human rights legislation. It's not a coincidence that on employment equity, people are increasingly getting frustrated. If they want remedies in relation to discrimination in the workplace, whether it's issues around accommodation or issues around employment, the present human rights legislation puts so much emphasis on a complaint-driven system where you have to file individual grievances.

All we are saying is that while it's important for us to make a few specific comments on what's in Bill S-5, for us this is a much bigger debate. At some point in time we'd like you, as a committee, to recommend that a comprehensive review of the human rights legislation in this country take place to take into account the public debate that's taking place around gay and lesbian rights, disability rights, visible minority rights, and employment equity. That's the position we'd like to put forth for you today.

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Mr. Paul Forseth: So what you're saying is even in this bill you'd like to see the clear delineation that affirmative action programs, including quotas, would be available.

Ms. Nancy Riche: No, we didn't say quotas.

Mr. Paul Forseth: Okay.

Ms. Nancy Riche: That's what you said.

Mr. Paul Forseth: Certainly that's the tool used in affirmative action programs.

Ms. Nancy Riche: No, that is the tool used in some theories on affirmative action. We would agree to and support targets and timetables. Quotas take you down the road.

First of all, it's generally the response of people who oppose affirmative action—I'm not suggesting you do, but it's generally their response—to say these are quotas. Then the debate goes on from there about numbers of people who are not qualified to take the position. So then you get this whole mythology out there that anything to do with affirmative action, anything that redresses discrimination of the past, somehow or other puts unqualified people in place and therefore, as David said, discriminates against other people, that it causes discrimination. We don't think it has to be that way.

We've actually done quotas. I'll take a very small piece of society, the Canadian Labour Congress. We added six extra seats for women back in the mid-1980s. We've added to our highest decision-making body two extra seats for visible minorities and one additional seat for aboriginal persons. So we have in fact established our own quotas.

I could spend a lot of time on affirmative action. A part of my head says we shouldn't need this. Maybe I don't agree, but I haven't found anything better yet. It's not happening for people who are discriminated against in this country. If women are not getting the opportunities, women of colour are getting even fewer opportunities. There's something wrong.

We would not support quotas per say, but we support targets and timetables. We certainly supported a lot of the pieces of the Employment Equity Act. In fact we would have liked it to be a lot stronger. But just the fact that a company has to sit down and look at its workplace—look at what they have and who's not there and all of these things....

In Europe they call it positive action. We see it as quite positive. Unless somebody can tell us that in this society, in the workplace, and in access to all services of the government, everybody here is equal.... I don't believe it yet. I'd like to believe it, but I don't. So we need some sort of redress.

Mr. Paul Forseth: Thank you.

The Chair: Thanks a lot.

Mr. Telegdi.

Mr. Andrew Telegdi: Thank you, Madam Chair.

In terms of the question of duty to accommodate, labour could play a very strong role. I'm thinking specifically of people being injured in the workplace. You have somebody who worked for the company for a couple of decades, all of a sudden he or she becomes injured, and now you have the person going on long-term disability or compensation. I think also of municipal services, such as firefighters who become injured. One would think, if they can no longer fight fires, they might be quite good at dispatch. This doesn't seem to happen a whole lot.

I know in factories in particular, the seniority system is very strong, which means people might be able to get jobs that are not as demanding as they would be, say, on the floor. But I wonder if some of those positions could be reserved for people who are injured in the workplace. Probably the unions would be in a much better position than anybody else to militate for those kinds of changes and accommodations.

Ms. Nancy Riche: Yes, I absolutely agree with you, and the history of the trade union movement is in fact that we have done just that. For workers injured on the job underground in mining companies, there's accommodation made to find a place above ground.

In workers' compensation, when the board rules light duties, it is the union fighting to keep the person on the job. Look at some of the jurisprudence. I was looking at one over the weekend on a postal worker. The company brought them back on light duties.

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The union has a very good history, I believe, in terms of accommodation for those injured on the job. I'm not sure our history is that good in the other areas of discrimination. Again, if you read the jurisprudence in the Renaud case, which was on religious grounds, and in the Gohm case which was on religious grounds, we did not play the role. That's where we talk about the changing notions and how we have developed guidelines for our own unions and our own affiliates on how you work through this.

In terms of the injured on the job, I don't know if the employer could reserve places. I'm not sure the employer would ever agree, in terms of productivity, to just leaving some space empty for the potentially injured.

Our first priority would be a health and safety package within the workplace. Hopefully, we would then have no one injured. Once they have been injured on the job, then labour has a very good record in terms of accommodating this. If it is impossible to accommodate it, then the person injured beyond being able to work in that workplace would live in some dignity with an income that allowed them to live okay. Having said this, we're always open to ways in which a person injured on the job can be accommodated. I think that one, in terms of duty to accommodate injury on the job specifically, was very good. In terms of accommodation for people born with disabilities, in terms of accommodation for religious beliefs and other areas, then we all, the employers and the unions, have a lot of work to do in terms of preparing for that accommodation.

Did you want to add something, David?

Mr. David Onyalo: I just wanted to provide an example.

Nancy has provided you with the examples of where we have done some work in the past with respect to people injured on the job. She has also provided some examples with respect to areas where we still need to do some work, with respect to religious accommodation.

I worked for the CLC previously. I came out of a workplace that had a lot of injuries. I was a former employee of Toronto Hydro. Some of the people worked outside and some of the people worked inside. In terms of the outside workers, we had linemen, essentially the people who used to carry a lot of loads up the poles and that kind of thing. We also had people who would work underground pulling heavy cables.

So we had a history in that workplace where even before we had some kind of a collective agreement language, even before we called what we were doing “needing to accommodate”, we used to have some jobs set aside that didn't need heavy equipment, heavy lifting, so that people who were injured on the job could go to those jobs, do light duties, and maintain their pay. Eventually, that evolved into some kind of a collective agreement language being developed.

Right now, in the collective agreement between Toronto Hydro and CUPE local 1 there is language that actually reinforces what was already a practice. You will find in a lot of workplaces, for example, that units don't go out and advertise the kinds of arrangements they're getting into between the employers and union leadership in the workplace to make sure those union workers, those members who are injured in the workplace, actually are accommodated. They get a lot of support from all the other union members, and in most cases the employers are usually satisfied with those kinds of arrangements.

There are all kinds of those arrangements throughout our workforce that we don't advertise, that we don't talk about. They were brought in even before we started talking about the need to accommodate, even before we were obligated under Canadian law to take on the duty to accommodate in a big way. So all those examples are there.

Ms. Nancy Riche: I just want to make one point on seniority, because until you have studied it you might even believe we have good seniority clauses in collective agreements. That is not really the case.

Far less than 1% of collective agreements have pure seniority, that is to say, seniority being the only criteria for a position. I suspect the rail unions might have the best collective bargaining language.

We women learned this for years. We were being told seniority was a barrier until we started actually studying it. So it's not as great or as perfect as it is presented to be. It's absolutely important to the trade union movement in terms of years of service, but it's not the barrier, because it just doesn't exist in the collective agreements, as many people think.

The Chair: Thanks, Mr. Telegdi.

Mr. McKay.

Mr. John McKay: I am curious about something. When an employer is named in a suit involving duty to accommodate, do you think the union, if it is a unionized shop, should also be a named party?

Ms. Nancy Riche: Sometimes it is.

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Mr. John McKay: At that discussion, and when negotiations are carried on about the cost of a duty to accommodate, are unions asked, one way or another, to directly or indirectly back off on wage demands or benefit demands in order to fund the cost of a duty to accommodate?

Ms. Nancy Riche: Not to my knowledge. I can't speak for every collective agreement, but for the cases I know about I would say no.

Mr. John McKay: As a point of philosophy, is there any reason why, in the workplace of a union and an employer, that the employees should also not be made to bear the cost of the duty to accommodate?

Ms. Nancy Riche: You ask this philosophically and then you ask it specifically.

Mr. John McKay: You were going in the direction of systemic discrimination.

Ms. Nancy Riche: Let's talk philosophically and specifically—whatever.

Under the duty to accommodate, the labour movement has argued before the Supreme Court. We have to look at the power of the two parties. I know there's a great myth out there that we're all powerful in the trade union movement, big labour, but that is not true. In fact, if you look at any collective agreement, the very first page says that management retains all the rights not included in this collective agreement. That's a legal statement. The only rights the union gets are the ones they've managed to negotiate at the table.

So we think there's a power imbalance, number one. This has been our argument at the Supreme Court, even taking into consideration our responsibility for the duty to accommodate. I don't want to deny that responsibility. In fact, at the time of accommodating it is not the union that decides the costs, nor should we be asked to pay the cost in the particular case. That's not our job in the workplace. It's the employers' job. They're the ones doing the projections.

That's not to say that in the negotiations of a collective agreement that the language to provide for a duty to accommodate may in fact have a cost factor. I don't believe there's anything at the table that doesn't have a cost factor. So if we actually negotiate duty to accommodate language for potential duty to accommodate...because you can't cover every single situation. You can in a collective agreement allow for all faiths to have the right to observe the days of their religion. If you do it in the collective agreement, then the whole cost factor is brought in there and I don't think it then becomes a cost.

In the Gohm case, where the woman was prepared to work Sunday straight time in order to get her Saturday off and the union said “No, Sunday work is double time and we won't let her work for straight time because that's a violation of the collective agreement”, the union was looking after the cost as it pertained to its members. It's bizarre, because the whole thing of the woman doing Sundays would have cost $160 for the full year. They couldn't and they didn't. The same thing happened in the Renaud case.

Somehow or another the union couldn't get to the point of saying, let's open the collective agreement and deal with this. If they had done that at this time, they could have then discussed costs and the union would have been a participant in the cost discussion.

Mr. John McKay: In principle, then, subject to certain safeguards in terms of participating in the notion of how much it's going to cost and of the actual decision itself, the CLC would not oppose the concept of spreading the cost onto the workers.

Ms. Nancy Riche: No, I didn't say that.

Mr. John McKay: I'm just pushing you here.

Ms. Nancy Riche: It's a good line.

Mr. John McKay: I just wanted to see where you were going with this.

Ms. Nancy Riche: The cost is on the workers. Immediately you accommodate then you are changing something in the workplace pattern, no matter how minor, no matter how major. The person who needs Friday sundown to Saturday sundown off means somebody else is going to have to fill in for that Saturday shift. There is a cost to the duty to accommodate. There's a cost to accommodation. We understand that. We support it. We believe in it. You can't do it any other way.

Mr. John McKay: Do you want to pay for it?

Ms. Nancy Riche: We pay for it anyway, don't we? The worker pays for it.

Mr. John McKay: There's an argument to be made that you do indirectly pay for it.

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Ms. Nancy Riche: Of course we do.

Mr. John McKay: But I wonder whether you should become directly involved in the cost.

Ms. Nancy Riche: What do you mean? Money?

Mr. John McKay: Exactly. If you are a named party in the actual lawsuit—

Ms. Nancy Riche: Then you're also going to give us the right to manage the production, to decide on the market areas, to decide where we're going to open a plant?

Mr. John McKay: That would be quid pro quo.

Ms. Nancy Riche: There are certain lines of demarcation of what workers do and what management does. I don't particularly want us to jump over them. They have certain things to do and management has the right to do this. Unions are not managers. We have a different role in society.

That's not to say that in discussions you wouldn't say you're prepared to let this woman work straight time on Sundays. That's a cost to the union in order to accommodate her religious beliefs. The company saves that $160 a year and the union actually violates their collective agreement because they would have to open up the collective agreement to do it. Everything you discuss has a cost.

On the specific, no, we don't support that as being our role.

Mr. John McKay: I'm curious to hear your argument with respect to the proposal that the phrasing be amended to “all relevant and bona fide considerations including health, safety, and cost”. What's wrong with that?

Ms. Nancy Riche: Nothing on its face. This one is very hard. I know we sit here making recommendations on systemic issues. Duty to accommodate is almost an individual, case-by-case decision.

The recent court decisions suggested that somehow or other we negotiated discrimination when we had no way of knowing. We've had decisions along these lines, such as the pay equity decision last week, where the judge basically said if these women are not being paid what they're worth, it's because the union negotiated rotten salaries.

Mr. Justice Sopinka said in one of the cases that it doesn't make any difference which party put it on the table; when we look back and find this clause, that ends up being discriminatory. He said he's not going to look back and see who put it on the table because at the end of the day both parties sign a collective agreement, therefore both parties are responsible. That seems to make sense, doesn't it? It makes sense to me. I give speeches about collective agreements, specifically on the word “collective”.

We have had situations where in fact we have gone right to a strike and maybe even been legislated back. For argument's sake, let's say it was to get pay equity for women. When we lose at the end of the day because we're legislated back to work, we're hardly an equal partner in signing off an agreement that is discriminatory.

That “health, safety, and cost” is restrictive. It will probably be the criteria on which it is used. In fact, if we have a change in shift, if some guy says I don't mind taking this guy's Friday shift, then fine. There is no health, safety or cost involved. It doesn't cost anybody any more. It's not a health factor. They're both able to perform their duties. And it's not a safety problem. So it may not apply.

We have to find a way, and I'm not suggesting it's easy. We'll live with “reasonable” and pray to God that the court cases that have brought us all up short, employers and unions, will be able to work through the accommodation.

Mr. John McKay: I'm glad to hear the CLC is getting religion all of a sudden.

Ms. Nancy Riche: I've always had it. That's why I'm so good in my job.

Mr. John McKay: That strikes me as quite curious. You would have an expansive notion of health, safety, and cost, so you don't really object to the notion that there could be other relevant considerations.

Ms. Nancy Riche: I don't think we know. I'm concerned with the employer's list, and they're all alike. You talk about the CLC, but George Smith and the bankers and the boys all get together and figure it out and then they throw in a disruption of the collective agreement to see if we'll support their position. I know them too well.

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I think we get into some serious difficulty if we have a short list and more difficulty even if we have a longer list. We have to depend somewhat on the jurisprudence and the history and definition of the word “reasonable”, because each workplace is different.

A small workplace of six or seven people is going to have a lot more difficulty accommodating than a General Motors plant in Windsor could—oh, I'm sorry, I should say “than one of the big three in Windsor could”. It's going to be a lot easier to accommodate for the big companies. A big mining company can more easily accommodate someone above ground who's been injured underground.

I think that historically we tend to look for more restrictive and tighter criteria on things. On this one I would think the employer is doing what we're doing. We're taking what the courts are saying and we're trying...in 1993 we had guidelines endorsed by our executive council for unions to look at in terms of duty to accommodate—in favour of the person we're accommodating, I should add, not to beg off the responsibility.

We're prepared to leave it as “reasonable” and work through it case by case. Down the road I may be sorry I said that, but at this point that's what we're saying.

The Chair: Thank you very much. It's always fun.

And congratulations on your almost-new position, Mr. Onyalo.

Ms. Nancy Riche: I thought you were congratulating us on an almost-new government in Nova Scotia!

The Chair: No, my dear. Get a grip!

Voices: Oh, oh!

The Chair: Let me just say, colleagues on all sides of the committee—and you may be interested too, guests—that we have some information indicating that there will be a decision on a motion in the Bell case today with respect to the independence of the tribunal. We hear that a decision has been made and that there should be a press conference. That decision may challenge the independence of that tribunal—constitutionally. So you might want to take a look at your press releases today.

We're adjourned.