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.): We're back. This afternoon we're hearing from the Canadian Bankers Association. We have with us Harriet Stairs, who's an executive vice-president for human resources with the Bank of Montreal; Judy Jaeger, who's vice-president of diversity and corporate programs with the Canadian Imperial Bank of Commerce, which is my bank—I'll declare my conflict—and Andrew Finlay, who is senior counsel for the employment law group at the Bank of Nova Scotia.

I bank with CIBC and I don't pay any fees, and that's because my bank has such good programs. Anybody who wants to talk to me about that can talk to me about it later.

Some hon. members: Oh, oh!

An hon. member:

[Editor's Note: Inaudible]

The Chair: In your dreams.

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Before we begin, I want to mention that this morning the Federal Court of Canada trial division, Madam Justice Donna McGillis, a graduate of the University of Windsor, ruled that the tribunal as constituted, at least in terms of the Bell Canada case, is not constitutional. We all may wish to reflect on that over the course of the day. I have a copy of the decision here, which Nancy Holmes got for us.

Would you like to proceed now?

Ms. Harriet Stairs (Canadian Bankers Association): Madam Chair and members of the committee, thank you for introducing us. We represent the Canadian Bankers Association, whose members are Canada's 53 chartered banks.

The banking industry is one of the three major industries regulated under federal human rights law. The banks alone work with over 200,000 employees and literally millions of customers across the country. The banks continue to support the principles and objectives of the Canadian Human Rights Act. We support most of the changes to the act that are proposed in Bill S-5, including the addition of the duty to accommodate special needs, needs that cut across the range of Canada's diverse population.

More specifically, the banks are aware that there is still much to be done to ensure that people with disabilities can participate fully in Canada's social and economic mainstream. Our industry wants to be part of the momentum for change for people with disabilities, which the bill promotes. In order to continue to play a progressive and constructive part in the process of change, particularly for people with disabilities, we need a legal framework that is supportive and enabling, and that can help us achieve the positive practical outcomes we are all hoping for.

It is from this vantage point that we're here today to urge you to consider changing two provisions in Bill S-5, and our recommendations are as follows. First, regarding the duty to accommodate to the point of undue hardship, we strongly recommend slightly amended wording for proposed subsection 15(2). The changes we propose are, first, to insert the word “reasonable” before “accommodation”, and second, to add the phrase “to provide for consideration of additional criteria for assessing undue hardship”, rather than restricting the criteria to only those three stated in the bill, that is, health, safety and cost. We believe this wording maintains the clear and fundamental duty to accommodate to the point of undue hardship in a way that is consistent with the many decisions of the Supreme Court on this subject since the early 1980s.

In the court decisions, the concept of reasonableness has always been an intrinsic aspect in approaching a particular accommodation. The Department of Justice has told us that “reasonable” is implicit in Bill S-5 and inherent in its intent. If so, why not state explicitly so that the law is clear and understandable to everyone?

The Supreme Court also considered many factors when trying to assess the test of undue hardship, and the court repeatedly cautioned against limiting the list of factors. In each case they looked beyond the criteria of health, safety and cost to other factors such as impact on employees, operational effectiveness of the business, disruption of collective agreement and the interchangeability of the workforce.

We should point out that nearly all of those decisions were decided in favour of the complainant, not of the employer or business. We can live with that because we know that in reaching their decisions the court examined all relevant factors and sought an appropriate, balanced and reasonable solution. While we agree that health, safety and cost are likely the most important criteria for assessing undue hardship, they are not the only ones. The Supreme Court has established a model for looking at all factors specific to the circumstances of a particular case.

The Department of Justice has told us that they have used Ontario's Human Rights Code as a model for addressing the matter of accommodation and undue hardship in Bill S-5. We are also aware that a number of organizations representing people with disabilities support the Ontario model.

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Ontario is the only jurisdiction that currently uses this approach, and it represents a significant departure from the Supreme Court's decisions. By not stating the concept of reasonableness and by limiting the criteria for undue hardship, Bill S-5, like the Ontario law, is subject to narrow and rigid interpretation.

Bill S-5 is not simple codification of existing jurisprudence. It is not in keeping with either the wording or the spirit of the Supreme Court decisions.

We urge this committee to consider our suggested wording for proposed subsection 15(2). It will not diminish the potency of the duty to accommodate special needs. What it will do is to establish in federal law a more mutually beneficial approach to the duty to accommodate. Rather than positioning accommodation as something to be feared or something that could drive you out of business, it should instead inspire confidence that a reasonable solution can be found for those of us who are trying to implement the law on a day-to-day basis.

For years the banks, as employers, have been making accommodations for a whole range of special needs that include adjustments as diverse as rearranging work schedules to make travel to and from work more convenient for employees with disabilities and employees with specific religious or family requirements, providing sophisticated, adaptive computer technology that enables employees with low vision to work with electronic information and databases, and making available a room that can be used as a prayer room so that employees can maintain appropriate religious observances.

Most banks have special funds set aside to cover the cost of accommodations that may be beyond the budget capability of a particular branch or banking unit.

With regard to bank services, as a result of our initiative we are currently working with the Canadian Standards Association and other interested parties to write an accessibility standard for automated banking machines or ABMs. Such standards will mean that manufacturers and financial institutions will have appropriate standardized information for knowing how to enhance their ABMs so that they will be more accessible to people with disabilities and seniors, particularly people who are blind or have low vision and who are currently unable to see those machines.

Banks also make use of the Canadian Standards Association's barrier-free design standard as they renovate branches or build new ones. This standard has established dimensions and other criteria for making buildings accessible to people with disabilities. Compliance with this standard is voluntary.

Our second recommendation relates to the new provision in Bill S-5 that would allow for the laying of complaints in the provision of goods and services where there is no identifiable victim. Our experience convinces us that such an approach is ineffective in dealing with systemic complaints, and that it violates the principle of natural justice.

It is our understanding that the purpose of adding section 5 to paragraph 40(5)(b) in the current act is to harmonize the approach in the provision of goods and services with the existing approach for laying victimless complaints in employment. This is not sufficient rationale for changing the law, especially since victimless complaints are ineffective in any context.

The addition of section 5 to paragraph 40(5)(b) will not enhance the complaints process under the act. Instead, it will tie up the Canadian Human Rights Commission's resources in long negotiations that will ultimately prove unresolveable.

The banks have had experience with victimless complaints in employment under the Employment Equity Act. These have proven impossible to resolve. Five victimless complaints were laid against five banks in 1988. Almost ten years later, three of them are still unresolved, and the remaining two, despite having reached initial settlements, continue to experience major difficulties in implementation.

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Such complaints violate the principle of natural justice—for example, the right of the accused to know his or her accuser, and the fundamental requirement that full particulars of a complaint be defined in order that the respondent be given a fair opportunity to put forward a defence. Victimless complaints lack a specificity that enables parties to work towards viable resolutions.

We should also point out that when the Employment Equity Act was reviewed and amended in 1995, the House of Commons Committee on Human Rights and the Status of Disabled Persons recognized the ineffectiveness of victimless complaints. They ensure that the revised law contains a provision that prevents the laying of victimless complaints in employment based solely on numerical data. So we urge this committee to amend Bill S-5 by removing section 5 from the list of areas in respect of which a complaint could be made where there is no identifiable victim.

We acknowledge that the process of moving towards elimination of all discrimination in the provision of employment and of goods and services goes too slowly for some advocates. We also affirm that, aided by the Employment Equity Act and the Canadian Standards Association barrier-free design standard, the banks have been able to introduce substantial change in workforce policies and practices, and in our premises and services, over the last decade.

These changes provide testimony to the effectiveness of the approach that we have worked with so far. Our experience suggests that generally laws that establish inflexible, narrowly defined and punitive approaches do not create momentum for positive change. Instead they tend to create frustration, acrimony, complaints and legislation.

We urge you to consider the changes we have proposed. We are hopeful that the revised act will help us get on with the job.

Thank you for your time. We would be pleased to answer any questions.

The Chair: Thank you.

Only Mr. DeVillers has indicated that he has questions.

Mr. DeVillers, go ahead. If any other colleagues have questions, please let me know.

Mr. Paul DeVillers (Simcoe North, Lib.): Thank you.

Your suggestion for the amendment to proposed subsection 15(2) would simply be to add the word “reasonable”. You'd also add “all relevant and bona fide considerations, including health safety and cost”. But my question is on adding the word “reasonable”.

You say that Justice has given you the opinion that “reasonable” is implicit in the court's decisions. How do you feel that simply adding the word “reasonable”, without providing any further explanation or definition of it, improves the bill?

Mr. Andrew Finlay (Canadian Bankers Association): The decisions of the Supreme Court and tribunals and other courts over the last 20 odd years have all focused on the reasonableness of accommodation. It is one of the fortunate areas of the law that has actually benefited from judicial interpretation, such that the law is meaningful and helpful. Adding “reasonable” makes it very explicit, very clear, that there has to be balance, flexibility and reasonableness in approaching accommodation.

Mr. Paul DeVillers: So it's a question of clarification, not of changing the state of the law. You feel that it's clearer even though the word is not defined, which then reverts you to the jurisprudence you started from.

Mr. Andrew Finlay: Yes, that's correct. It's clearer.

Mr. Paul DeVillers: All right.

My second question deals with page 4 of your introductory comments, where you indicate that you're doing some work with the Canadian Standards Association on the ABMs. Do you have a timeframe on when those ABMs will be available so that visually impaired people will be able to do their banking that way?

Ms. Judy Jaeger (Canadian Bankers Association): We don't have a specific timeframe. You're talking about the implementation?

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Mr. Paul DeVillers: Yes.

Ms. Judy Jaeger: Right now we are working with a committee at the Canadian Standards Association to establish what the standards should be. Different banks have tried different changes to machines, so we have some that are testing different types of accessibility. What's important is to establish a standard first so that the manufacturers who partner with us on some of the work we've done can build to that standard.

In terms of saying by this date all machines will be— We're not in a position to do that yet.

Mr. Paul DeVillers: Do you have a ball park idea or something you're working toward?

Ms. Judy Jaeger: Given that we have probably 10,000 machines in the network, we haven't worked that out yet.

Mr. Paul DeVillers: But as of yet you haven't decided on the system, let alone worried about the implementation?

Ms. Judy Jaeger: Right. First we need to figure out what the standard is, and we have a number of different models. Some will be easier to adapt to the new standard than others. Until we have a standard, which is kind of our baseline, we won't be able to figure out the timelines for implementation across the board.

Mr. Paul DeVillers: So you can give us no indication of that?

Ms. Judy Jaeger: I can't. We certainly may be able to get back to you. I'm not working on that committee in particular.

Mr. Paul DeVillers: Right. Thank you.

The Chair: Mr. Lee.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

I'd like to address the issue of reasonable accommodation versus simple accommodation. To help my feeble mind capture the essence of the distinction, I'm wondering if you have any examples that would help me and perhaps colleagues see an actual example of the difference between an accommodation and a reasonable accommodation.

Ms. Harriet Stairs: Do you mean a simple accommodation and a reasonable accommodation or a hardship accommodation?

The point we're trying to make is that the way it reads, you'd have to go to a hardship. We're saying let's keep it at reasonable. Reasonable and simple I think are probably similar. It's not at that end of the spectrum. It's more at the other end of the spectrum, which isn't a problem for banks, but it might be a problem for small businesses, etc.

Mr. Derek Lee: Let's drop the word “simple”. That was my own word. Now I'm just going to use the words “reasonable accommodation” versus “accommodation”.

Mr. Andrew Finlay: Reasonable versus unreasonable?

Mr. Derek Lee: No. Reasonable accommodation versus accommodation. It is your proposal to insert the word “reasonable” in front of the word “accommodation”. There must be a reason for that and I presume it is related to a real life circumstance somewhere, something I could sink my teeth into to help me grasp the difference or distinction.

Mr. Andrew Finlay: One possible example I can point you to would be a case under the Ontario Human Rights Code. It involved a chiropractor in London, Ontario. He was challenged on the basis that he wasn't providing accommodation to a client by providing wheelchair access to his facility, which was an old home in which he actually lived and had his practice. He had three patient rooms in the old home.

It went to tribunal, and the tribunal concluded that he should take out one of the patient rooms and build ramp access into this building even though he had offered to treat the person at another facility or have other chiropractors treat the person. The order was to take out the room and put in the ramp and finance it out of his own resources. He ended up having to move his business because he couldn't do that accommodation.

That was under the Ontario language, which says you must provide accommodation. Reasonable accommodation in that case might have entailed any number of things balancing the interests of everyone involved, ensuring that the needs of the client were met fairly and reasonably and with respect to the dignity of the individual.

The consideration of cost, health, and safety, which are the three considerations we're trying to work into the act, as well as issues such as dignity, impact on the business. In my mind, that's a fairly good example of where reasonability is an important factor to work in.

Mr. Derek Lee: That's a good example. Therefore, the standard sought in “reasonable accommodation” might be seen to be more flexible than the absolute accommodation that seems to be sought in the second. Is that a fair way to put it?

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Ms. Harriet Stairs: I think that is a fair way.

What we're trying to get at is the more you make things absolute, the harder it is to implement things well and the more you have complaints, litigation, and confrontation. We found in other bills passed by this House that when they have some reasonableness to them, all the parties can work it out. It doesn't become a confrontational issue, and normally you can get to a position that supports everybody.

Mr. Derek Lee: Just to dally in the abstract for a bit, time permitting, if we graft onto the redress mechanisms in this bill the concept of the victimless complaint, would it be fair to say that the victimless complaint would add to the body of matters for which redress is sought? Do you think the volume or the bulk of work that the Human Rights Commission or tribunal will have to deal with will increase as a result of the adding on?

Ms. Harriet Stairs: No.

Mr. Andrew Finlay: Actually, the commission is probably in the best position to answer this. But from my own experience with the commission—I've been involved in a complaint with them since December 1988—I've seen them waste, and I use that word quite knowingly, their efforts, their resources, in trying to deal with a complaint when there is no specific victim and no specific policies being addressed, and with no investigation having ever been completed. That was in nine cases involving nine large federal employers, because of the nature, the victimlessness, the lack of specificity in the complaint. That was on the employment side.

Now they want to introduce it on the services side, so if there is even one complaint, it's going to be an unfortunate drain of resources that could be better spent dealing with the very matters that the complaint is trying to get at—negotiating specific complaints, coming up with specific, meaningful accommodation.

I think it will have a resource impact. It will distract them from their very valid objectives.

Mr. Derek Lee: We have in Canada's larger cities large numbers of Canadians whose language of birth or first language is other than English or French. You represent the financial institutions that provide financial services, not goods—well, perhaps goods from time to time. Would you envisage, under the provisions of the act the way it's currently constructed and with these proposals, that a group that had language other than French or English might view themselves as disadvantaged in dealing with financial institutions and might wish to seek redress under this legislation?

Mr. Andrew Finlay: You then have a group of victims who can be identified and services they're complaining about that can be specified?

Mr. Derek Lee: Let's say they feel disadvantaged because they cannot conduct business with the financial institution in their heritage language. We are not permitted under human rights legislation to discriminate against those languages. Do you envisage that being an example of the type of issue that could come forward?

Mr. Andrew Finlay: It's not likely to come forward for one reason, and that is there is a big effort to accommodate customers with respect to their language and specific needs. Quite apart from the fact that I think the banks have made big efforts in the past and will continue to make efforts to meet their needs and there will probably not be a complaint, if there were, if one of the banks was bad—and it certainly wouldn't be any of the banks represented here—and decided to deny service to a person, I'm not sure how this new mechanism of a victimless complaint will really enhance that person's opportunities for recourse. There are a number of opportunities, including an ombudsman at the different banks. There's a human rights complaint where the victims are specified. There are procedures they can use.

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Ms. Harriet Stairs: Frankly, it's just good business. In that case it would be good business to accommodate our customers, which we do. For example, with the aboriginal people—that's not a language issue—we accommodate by being on the different reserves, so a lot of accommodation is going on today. If it's good business, you know it's going to continue.

Just to dwell a little on what Andrew was saying, these victimless complaints take a lot of time for everybody and they don't seem to be resolvable. They just go on and on and on and on. I think it does drain resources from everybody's position. The more specific they are, the easier they are, because then you can do something about it. You can put in a branch, for example, people with the right language training if that's the problem for the people in that area. But if it's general and there is no victim, it's very, very hard to deal with. The Human Rights Commission could probably answer about the drain on their resources better than we can, though.

Mr. Derek Lee: Do you think we're doing anything in the amendments to this bill that would materially increase the volume of human rights litigation?

Ms. Harriet Stairs: The way you have it today, without reasonableness, you probably will have more litigation.

Mr. Derek Lee: I'm not suggesting we shouldn't have some more of it in various places and under certain circumstances. I'm just looking at the volume and the ability of the commission and other parties to cope with it.

Mr. Andrew Finlay: There will be an impact on the area of accommodation, undue hardship, and trying to work things out. Right now the staff at the commission are very good and work well with complainants and respondents in resolving matters. If you suddenly start restricting their flexibility and everyone else's flexibility, it's going to lead to disputes that are more difficult to resolve, which means more disputes.

Is there going to be more work in terms of the victimless complaints? Yes, I think that's going to have an effect on their workload.

Mr. Derek Lee: Thank you.

Mr. Chairman, I'll pause here. There may be other questions. I did have one other smaller one, and perhaps you'll recognize me later.

The Vice-Chairman (Mr. John Maloney (Erie—Lincoln, Lib.)): Mr. McKay, do you want to go?

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chairman.

I'm curious about your comments on page 3 of your presentation with respect to the wording you would wish to see in the legislation, namely “reasonable accommodation” with, at the rear end of that phrase, “such other considerations as the court might consider to be reasonable” versus the standardization of the concept of assessing undue hardship and what is involved in undue hardship as embodied in the Ontario Human Rights Code.

I put this to you as a question: would not industry prefer the certainty of a code over the more vague language of the proposal you're putting forward?

Ms. Harriet Stairs: Maybe I could answer it circuitously for a second. I'm responsible for human resources for Canada and our Harris BankCorp Inc. in Chicago, so I'm very familiar with American legislation when it comes to employment and employability. They have very defined affirmative action, for example, and I think the progress we've made in Canada has a lot to do with the fact that our bills have been more flexible and have asked people to go the extra mile and use creativity in problem solving. I administer both of them. I have piles of forms to fill out on the U.S. side, and I don't find that the spirit is there. They're not moving in the same spirit.

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To use that as an example, I don't think large corporations do need to have the i's dotted, because it means you can't move with the times, things are frozen in time, and you have to come back and have a change in legislation to move again with the times. As long as people know the spirit and the intent and have the goodwill to do it, and you have enough precautions in the bill to make sure people do know the intent— It's very clear what the intent is, and it's very clear that companies are going to be asked to stand up to it, so I don't think large corporations need all the boxes filled in.

Mr. John McKay: Your argument is that codification in effect, or in reality, militates against the desired goal, namely the elimination of barriers.

Ms. Harriet Stairs: That's been my personal experience in managing the human resources of two different banks.

Mr. Andrew Finlay: At a very personal, individual level, if you think the notion behind accommodation is to accommodate the needs of the individual, and everyone in this room is going to have very specific needs, you need flexibility to respond to those different needs. As soon as you start codifying, you reduce that flexibility. It's important to have the balance.

Mr. John McKay: How do you respond to the argument from the representatives of the disabled communities who have come before us saying that by putting the phrasing “health, safety, or cost”, particularly “cost”, in the standards for accommodation you in fact are giving a statement to the world that we are hypocritical, that we believe in non-discrimination but don't practise it, that it's quite an insult to 17% of the Canadian public who we are told are disabled in some manner or another?

Ms. Harriet Stairs: What we're saying is use those three words, but don't restrict it to those three.

Mr. John McKay: But they're going the other way. They're saying to eliminate totally those three words, particularly the word “cost”, from the legislation.

Mr. Andrew Finlay: So they're saying that accommodation is an absolute.

Mr. John McKay: Yes.

Mr. Andrew Finlay: Accommodation implies balancing needs. You can't have it absolute if you're looking for balance. I don't see it as hypocritical at all, but of course I see the benefit of that flexibility in my job.

Mr. John McKay: My final question is with respect to your comments on complainants who are not identified, which I think is an attempt to deal with the issues of systemic discrimination, or to move forward the systemic discrimination agenda. Your point is that these things simply go on and on and on, that they drain resources and nothing gets accomplished, and that 10 years down the road the issue has passed us by. I understand that argument.

Do you have a better way or a suggested way of dealing with the larger issues of systemic discrimination? Is there another phrasing or another means by which legislation could deal with that issue?

Ms. Harriet Stairs: We do work very closely with the Human Rights Commission. They know us and our policies well. They probably know them as well as we know them ourselves. I think at the policy level, for corporations that don't have their own self-governance, by their own policies, and their policies aren't forward enough in their thinking, the human rights people could be very helpful in setting a tone for corporations by taking the best practices of some place that's doing it very well and moving them forward.

Mr. John McKay: You see it as an educational solution, rather than a legislative solution.

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Ms. Harriet Stairs: I see the human rights people being more than just educational. They do carry the stick that says “and if you don't, we'll be back”, which is fair. I think that's fine, but doing it by best practices and giving people time, as they did for the women's issue— It was putting stuff in place, and if you didn't, they'd be back.

Mr. John McKay: If we accede to your suggestion, don't we just abandon the whole deal, the whole concept of systemic discrimination?

Ms. Judy Jaeger: Under the Employment Equity Act federally regulated employees are required to do an analysis of barriers, an adverse impact study, which identifies systemic issues at the higher level.

Mr. John McKay: That's just on employment issues.

Ms. Judy Jaeger: That's right.

Mr. John McKay: We're talking about the greater spectrum of relational issues as opposed to only employment.

Mr. Andrew Finlay: The current Canadian Human Rights Act does allow for complaints that would get at systemic issues on the services side of things, but you would need a victim and specific barriers or discriminatory acts to zero in on.

Whether it's an individual complaint or a complaint from a group of victims, the solution may very well be a systemic solution. It's usually in our interest to have a systemic solution, because then we avoid other complaints, even if it is an individual case.

Right now there is recourse through the complaint procedure; it's just that it has to meet some basic criteria typical of natural justice.

There's also the educational side of it—absolutely. That's on employment, goods and services. They're not even jurisdictional issues.

Mr. John McKay: Then your argument is that this proposed section is unnecessary.

Mr. Andrew Finlay: I think it's unnecessary and harmful.

Mr. John McKay: And harmful.

Mr. Andrew Finlay: It's harmful with respect to natural justice and the impact on resources.

Mr. John McKay: And it may be counter-productive.

Mr. Andrew Finlay: It could be.

The Vice-Chairman (Mr. John Maloney): Thank you, Mr. McKay.

Mr. Hilstrom.

Mr. Howard Hilstrom (Selkirk—Interlake, Ref.): I think the customer side of things and not the self-interest of the banks and other businesses take care of a good part of that and, when combined with legislation, should take care of those concerns. The employee side is a little bit of a different kettle of fish.

I would like to get your comments. Besides being employers and bankers, you also have clients of your own, small businesses, which at any point in their financial year may find they're in very dire straits financially.

We certainly don't want to see— and I'd ask you whether or not you see this legislation as being negative toward the primary goal, which is to assist and ensure that disabled in the workplace can function, keep their jobs, and in fact get hired in the first place. That's what I see as the objective of this.

Could you comment, from your knowledge of your clients and the general business world, on what effect, positive or negative, these changes will have on small businesses? If a small business with a serious financial problem does end up in a situation of having to accommodate, how do they finance it? Are the banks going to make special provisions to accommodate their customers, or is it going to be a choice of having to close down or do the best they can?

Could you comment on that, please.

Ms. Judy Jaeger: I'll try to comment on at least some of the points you made.

Most small businesses, depending on the nature of their business, may or may not be impacted by this particular piece of legislation, although the concepts of this legislation may carry over.

The Ontario legislation has the duty to accommodate, short of undue hardship, which may in fact have implications for business and their bottom line.

Having said that, my experience certainly with the employees we have hired and with the people we have in our workforce is that most accommodations do not cost the kind of money that would threaten the viability of an organization.

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There could conceivably be some particular cases. Andrew referred to a case where we think the solution brought forth through litigation was unreasonable, because in fact the chiropractor did have to reduce his ability to service other clients. He eventually ended up selling his building and doing any number of things such as taking a mortgage out on his business in order to meet that order.

That is an unusual circumstance, in my experience, although certainly we've had an employee where buying technology for him might have cost us $20,000 or $25,000. That's an additional cost for that employee. It's an investment in that employee, for certain. A small business man may not be able to accommodate that at all. It certainly challenges the mindset to say, why would I hire that person if they're going to cost me this much more than the next person who comes in?

That's part of the education that needs to happen. There are some supports for this, but those kinds of costs are unusual. Usually it is an accommodation that can be made with much less cost.

I can't say the banks have determined that we would have a special lending program for employers who are faced with this. It would come within the realm of normal lending programs for small business. It conceivably could be very difficult for a small business to do this if reasonableness isn't attached to the solution, because it has to be reasonable for both sides.

There has been at least one case in Ontario where we think reasonableness perhaps wasn't as reasonable for the business as it was for the individual involved.

Mr. Howard Hilstrom: In deciding the situations there—and I think Andrew mentioned an ombudsman—does Ontario have an ombudsman as such for liaison between the employer and the employee, for instance, which is more what I'm concerned about? Does it end up going to court?

Mr. Andrew Finlay: Within the Ontario legislation is there a requirement of an ombudsman?

Mr. Howard Hilstrom: Yes. It is always better to settle all these things outside of a court or any big judicial proceeding. Sometimes an employer and employee will not see eye to eye and that's why the complaint's coming forward. So how does that get resolved outside of the workplace?

Mr. Andrew Finlay: This is a great question. I'd love to speak to this.

It can be resolved within the workplace. Certainly within the banks we all have an ombuds system of some sort, so employees or potential employees who have a concern can raise it through that avenue if they feel uncomfortable raising it with their management, their manager's manager, etc.

I'm not sure if it's within all the banks; I suspect so, but there's usually a second avenue of some corporate service. It will respond to an employee's concern of discrimination, which is one of the things my group does. I will be contacted directly by an employee who has concerns about discrimination, accommodation, and then I will work with that employee and my management to try to come up with a solution.

When we look at the issue of reasonable accommodation, which is how we have approached it for years, we try to come up with examples of where we were unable to accommodate. It's very hard, because with a lot of imagination and flexibility and with people working together we always find some way of resolving it, almost without exception.

The Vice-Chairman (Mr. John Maloney): Thank you.

Do you have one more question, Mr. Lee?

Mr. Derek Lee: There is one question, Mr. Chairman.

Getting back to this business of reasonable accommodation, you indicated that you were advised that it was the view of the Department of Justice that the word “reasonable” was implied. Can you recall where that notion came from, where you picked up on that information?

Mr. Andrew Finlay: It was in discussions, around about the time the bill was being drafted or introduced, with Justice staff.

Mr. Derek Lee: These would have been verbal discussions?

Mr. Andrew Finlay: Yes.

Mr. Derek Lee: I'm just wondering if there is any way we can find out, Mr. Chairman. We don't have an actual counsel sitting with the committee until we do clause-by-clause, is that correct?

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The Vice-Chairman (Mr. John Maloney): That's correct. If you have a specific inquiry, we could—

Mr. Derek Lee: I gather I'm not in a position to ask staff today whether there's reason for us to accept that the word “reasonable” is implied.

The Vice-Chairman (Mr. John Maloney): We can ask the officials in clause-by-clause, Mr. Lee, yes. Would that be adequate for your purposes?

Mr. Derek Lee: I'll leave the question unanswered, then, with that in mind. Thank you.

The Vice-Chairman (Mr. John Maloney): Okay.

Are there any other questions? There being none, I wish to thank the Canadian Bankers Association for appearing this afternoon and providing us with their comments and assisting us with this act. Thank you very much.

The meeting is adjourned.