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, May 5, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): Welcome. We're still dealing with estimates.

Today from the Canadian Human Rights Commission we have: Michelle Falardeau-Ramsay, chief commissioner; John Hucker, secretary-general; Joanne Baptiste, director, corporate and personnel services branch; and Denis Pelchat, chief of financial services.

Welcome to all of you. Do you have a brief or did you just intend to throw yourselves on the wolves here?

Ms. Michelle Falardeau-Ramsay (Chief Commissioner, Canadian Human Rights Commission): No, I always have something to tell you.

The Chair: I thought you might. Go ahead, Madam.

[Translation]

Ms. Michelle Falardeau-Ramsay: Thank you. Madam Chair and members of the committee, I am pleased to be here today to talk to you about the work, the priorities and the future plans of the Canadian Human Rights Commission.

As you no doubt know, this is a particularly important time for the Commission. We are celebrating our 20th anniversary this year as well as the 50th anniversary of the Universal Declaration of Human Rights. This is a wonderful opportunity to take stock of the progress made by Canada in the area of human rights and to assess the Commission's contribution to that progress. It is also a good opportunity to reflect on equality rights in the Canada of the future and on what could be done to help us adapt to new realities. It is not surprising, therefore, that the theme of this year's celebration for the Commission is “Celebrating our Progress, Facing our Future.”

As we mentioned in our recent Annual Report and in our Report on Plans and Priorities, there is no doubt that Canada has made significant progress in ensuring respect for equality rights. I believe that our society is more open and accepting now than it was 50 or even 20 years ago, and more willing to both acknowledge and accommodate diversity. That is not to say, however, that our human rights situation is perfect; if that were the case, the Human Rights Commission could well close up shop. We still face important challenges, both in specific areas of equality rights, and in terms of the effectiveness, efficiency and accessibility of our own operations.

[English]

It is clear that a human rights agency can only be as effective as the tools it has at its disposal, and the key tools for our commission are the Canadian Human Rights Act and the Employment Equity Act.

The Canadian Human Rights Act has served us well in the years since its adoption in 1977. It not only guides the commission's work but it has also been an important vehicle for social change. Tribunal and court decisions dealing with complaints filed under the act have made a significant contribution to Canadian human rights jurisprudence.

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But legislation is not static. It must be constantly monitored and improved to ensure its continued effectiveness. The last time I appeared before this committee, which was not so long ago, it was to convey the commission's views regarding Bill S-5. At the time, we described the bill as an important initiative, both for its provisions regarding accommodation of people with disabilities and its operational amendments aimed at making the complaints process more effective. Since that appearance, the necessity of reforming the tribunal system has been made all the more pressing with the release of the Federal Court decision relating to the independence of tribunals.

We were therefore very pleased to see the bill adopted in third reading in the House of Commons last week and are hopeful that it will become law in the very near future. I would particularly like to thank the members of this committee for their efforts in support of this legislation.

As important as Bill S-5 may be, we do not see it as the end of the process of legislative change. When the bill was originally produced, the Minister of Justice announced that there would also be a comprehensive review of the Canadian Human Rights Act at some time in the future. We strongly agree that a more in-depth look at the act is required in order that it may effectively protect the rights of Canadians in the future.

Although there have been a number of amendments over the years, the act has not fundamentally changed since its adoption in 1977. At the same time, our society has undergone important social and demographic changes that present significant human rights challenges.

We are hopeful that the next review will take place in the broadest possible context, in consultation with Canadians from coast to coast. The review should look at the human rights challenges this country will face in the 21st century and what kind of legislation would best meet those challenges.

For example, is there a better way to deal with issues like pay equity than the current complaint-based system? Is the act's current definition of what constitutes human rights too restrictive? Is there a way the human rights system can be made less confrontational and litigious? These are only a few of the questions that could be asked in reviewing our legislation.

[Translation]

As much as we would like to see the Act reviewed and changed accordingly, we recognize that it is not something that will happen overnight. In the meantime, our greatest concern is making the legislation we do have work as well as possible. This was uppermost in our minds when we developed our plans and priorities for the next three years.

You will note, for example, that one of our key priorities is to review and refine the current complaints process for responsiveness and accessibility. We are well aware of concerns that our process have been too slow and overly bureaucratic, and have worked hard over the past few years to deal with the problem. I am happy to say that we have made some progress and that we have reduced the time it takes to process complaints. Our work in this area is not yet done, however, and we hope to continue refining our complaints process over the next three years, to ensure that it strikes the appropriate balance between procedural fairness and responsiveness.

We also recognize that dealing with complaints makes up only one part of the Commission's statutory mandate. Another major aspect of our work is our effort to prevent and reduce discrimination through public education, research and information programs.

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Our plans and priorities report describes this as “to contribute to an enhanced understanding of human rights principles and issues in Canada.” In addition to such core activities as producing publications, meeting with employers and community groups and responding to media enquiries, we are placing a special focus on the development and delivery of messages aimed at promoting respect for human rights with various sectors of Canadian society.

[English]

We have also identified four specific issues as special priorities for the three-year period. These are: improving the situation of aboriginal peoples; reducing barriers for persons with disabilities; improving the position of women in the labour market; and improving the representation of visible minorities in the federal public service.

These issues were chosen after a great deal of thought and discussion on the part of our commissioners and staff. They all represent situations where the rate of progress has not been as great as we had hoped, and where we believe special attention is required. These are also issues that can be addressed, at least in part, through our new role under the Employment Equity Act. The audit process is well under way, and we are hopeful we can use employment equity audits to both measure and improve the representation of the four designated groups. We are also working on a number of specific policy, promotion and compliance initiatives relating to these priorities.

The fact that we have identified priority issues does not mean that other concerns will fall by the wayside or that we will neglect our core activities. One must also recognize that any plan is a living document and will evolve over time. But it is clear that the amount of work we can do in any given area is subject to the financial and human resources we have at our disposal.

As you can see from our estimates, our budget is tighter than it has ever been, and we have to constantly make tough choices about how our resources are used. I would be remiss if I did not reiterate our concern about our constrained financial situation and express the hope that perhaps additional resources could be available at some time in the future.

I will end here to provide sufficient time for questions. I thank you very much for your attention and look forward to your questions and comments.

The Chair: Thank you.

Do you have some questions, Mr. Forseth?

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Ref.): Oh, certainly.

The Chair: Ten minutes.

Mr. Paul Forseth: At page 16 of “Part III—Report on Plans and Priorities”, you set out program resources for each branch of the commission for the years 1998-99. Under the area of the executive offices branch, it's forecasting a net plan spending of $1.24 million with about 13 full-time equivalents.

Maybe you could describe the nature of these 13 positions and what the operating expenses of this branch of the commission would entail. Then we could get into the legal services branch.

Ms. Michelle Falardeau-Ramsay: This branch includes my own office, obviously. There's me, the secretary-general, the director of the executive, six officers, and four support staff. Those are the full-time equivalents employed in this area.

It also covers, as far as the budgetary aspect is concerned, the part-time commissioners' fees and travel; the general travel of the 13 full-time members of this office; translation services; overhead; and all the other services normally provided to this type of operation.

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Mr. Paul Forseth: For the legal services branch the forecast spending is $1.79 million, with 17 full-time equivalents.

It would appear that the commission is having to farm out some legal work to private lawyers in order to deal with the caseload. Does the commission indeed farm out work to private lawyers? What's the cost there? How does this compare with what the commission's in-house legal staff does?

Ms. Michelle Falardeau-Ramsay: Last year we had to farm out quite a large number of cases to the outside because we don't have enough full-time equivalents to fill all the jobs. That's one part.

The second part is that sometimes it is more economical to have a lawyer from a specific area deal with a case—for example, a Vancouver lawyer could handle a case dealt with in Vancouver.

Last year we spent about $225,000 on contracts. To compare that with the number of full-time lawyers with the commission, we have 10 lawyers plus general counsel. They handle most of the cases. You have to consider that right now, an average case in front of the tribunal takes 10 days, which means usually including one day of preconference hearing, and in the most recent case, one day of mediation. But many cases, especially those dealing with racial harassment, will go up to 30 to 40 days. You also have cases like the big pay equity cases we've had, especially the case including the Treasury Board with PSAC, and the post office pay equity case, where we saw 300 days of hearings on a six-year basis. Those cases usually require the presence of two lawyers.

That doesn't take into account the reviews in front of the Federal Court plus the appeals in front of the Federal Court of Appeal. I can assure you, our lawyers are really, really busy.

Mr. Paul Forseth: Thank you.

During the discussion of Bill S-5 there was this concern about being able to deal with systemic discrimination as compared with an individual, case-by-case process. Perhaps you could respond about how you're trying to deal with those concepts. Are you altering your operations? Do you have some plans in that regard, and does that suggest changes in the act in the future?

So perhaps you could address generally this duality of responding to systemic discrimination rather than individual, case-by-case complaints.

Ms. Michelle Falardeau-Ramsay: One of the tools we would like to put into effect during these next three years is a way of identifying at the beginning of a case, even sometimes before it becomes, I would say, a written complaint, which cases we could group together and also which cases would have the most impact either because of the number of people involved or because they would set a precedent. In the last few months we have in fact already established that type of committee to decide on those cases.

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The way the act is set up right now, I don't think we can really do much more than that as far as the systemic issues are concerned. But we are always trying to use our creativity to find ways to approach the systemic issues in a way that is more efficient than the individual complaints, as we have to do now because of the act.

Mr. Paul Forseth: The issue of pay equity is a big one. Can you just tell us generally from your perspective where we are at and where are we going with that issue?

Ms. Michelle Falardeau-Ramsay: That's an interesting question. We will probably know a bit more about where we are going when we get the result of the appeal on Mr. Justice Muldoon's decision in the Bell case.

As you probably know, we could not launch an appeal of this case ourselves because we were not given full intervener status in front of the Federal Court, but I don't want to bother you too much with all these technical details.

The claimants have appealed and we are going to join that appeal. But we feel that right now the judicial and legal quagmire that exists in the pay equity area is such that it cries out for a new way of dealing with those cases.

I can only repeat that I think a complaint-driven system is not appropriate to deal with those complaints. It creates unfairness because you have employers against whom there are no complaints, who are not obliged to abide by pay equity. I think it is much too litigious and confrontational and we should get away from this approach.

We should get to an approach that would be much more cooperative with a monitoring system, a bit like we have in employment equity. I think we could probably then accomplish a lot more than we can with the present system, where lots of resources are affected by it and too many are affected by it.

Mr. Paul Forseth: It sounds like family law. We just need to get the parties together to work out a solution.

Ms. Michelle Falardeau-Ramsay: I think in fact it's a good thing. While you're speaking about mediation and getting people together, I know it looks a bit like the flavour of the month, but it is something that works.

We are, in fact, looking at introducing better structured mediation into our system. We are working on that and looking, for example, at what has been done at the Ontario Human Rights Commission, where they used it with very good results. So we don't see why we shouldn't be looking at it and trying to do the same thing.

Mr. Paul Forseth: Thank you, Chair.

The Chair: Thank you.

Madame.

[Translation]

Ms. Madeleine Dalphond-Guiral (Laval Centre, BQ): Your report targets four client groups that you have identified very clearly. Since I have had the misfortune of teaching for a long period, I would like to ask you one question in particular. When you talk about increased representation, I am sure that you are thinking of a minimum percentage that you would like to reach within one, two or three years. Could you clarify for us what you mean by increased representation?

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Ms. Michelle Falardeau-Ramsay: You are talking about increased representation...

Ms. Madeleine Dalphond-Guiral: For example, regarding employment levels among aboriginal people and people with disabilities. I am referring to things that are measurable. It would be difficult to measure the extent to which people have become more aware of these issues.

Ms. Michelle Falardeau-Ramsay: You are quite right. This is just what we are hoping to do through our employment equity audits.

As you probably know, aboriginal people and those with disabilities are currently having a very difficult time, in both the private and public sectors. For example, if we continue to employ people with disabilities at the present rate in the two sectors, it will take 31 years before employment levels match their availability. So it is important for these people to at least make real progress regarding their representation, in both the private and public sectors.

Aboriginal people are not faring much better. In the private sector, the situation is very bad, while in the public sector, their representation is much better, probably owing to the presence of the Department of Indian and Northern Affairs. Without that department, their representation would be much lower. I will be able to give you figures a little later.

The representation of women, in both the public and private sectors, is generally good. Representation is in line with availability for this group. But in particular areas, for example in traditionally male occupations, where salaries are often quite high, women are less well represented. They have a lot of difficulty breaking into those areas.

The same is true of the integration of women in combat positions of the armed forces. It is not a very good situation, but we have to go along with the court's ruling. There have, however, been significant changes in the attitude of the armed forces over the past year. Very helpful recruitment systems have been set up, and it will be possible to assess the results within a year. The forces have taken all sorts of steps, including sensitivity symposiums and courses for their officers and soldiers in order to improve the lot of women in that sector.

At present, aboriginal people make up 1.2% of employees in the private sector and Crown corporations, while their availability is 3%. In the public service, their representation is 2.4%, with availability at 2.6%; as I explained to you, this is due to the presence of the Department of Indian and Northern Affairs.

Representation of people with disabilities is 2.7% in the private sector, where availability is 6.5%. In the public sector, representation of this group is 3.3%, with availability at 4.8%.

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Members of visible minorities are represented in the private sector at a rate of 9.2%, which matches their availability of 9.1%. But in the public service, their representation is 4.7%, while availability is 9%. These figures are based on the 1991 census. When we have all the data from the latest census, we will probably find that availability has increased significantly to about 11 or 12%.

Ms. Madeleine Dalphond-Guiral: I'm sorry that I arrived late. You were talking about the Act. Of course, nothing is perfect, including us and even legislation. On the basis of your experience at the Commission, what are the main aspects that we should look at in order to bring the Canadian Human Rights Act up to date?

Ms. Michelle Falardeau-Ramsay: First of all, it would be important to see whether the concept of human rights should stay as is or be broadened. For example, should we take into consideration the obligations that Canada takes on when it signs international instruments such as the International Covenant on Economic, Social and Cultural Rights?

One might also want to look at how to address the systemic aspect of discrimination and what systems can be used to address this problem. For example, what could we do if we realized at some point, given the number of complaints received, that there was a problem of sexual harassment in a department or with a private sector employer, or a service delivery problem such as the one that occurred a few years ago? We do not have any means, except through individual complaints, of addressing this problem.

When we receive an individual complaint, we resolve the problem of that person, but we do not resolve the overall problem, which is very frustrating and requires a great deal of resources. The same is true in the area of racial discrimination. I do not have all the answers. I am expecting, in fact, that there will be consultation and that the groups concerned, including employers, unions, community groups and those who are involved in cases as complainants or respondents, provide ideas to help us set up a system that will be more appropriate for resolving the kind of problems that we are dealing with right now.

That doesn't mean that we need not deal with individual complaints, since it is sometimes necessary to have a recourse system for individual problems. There is a whole other area that is not dealt with by the Act, or that is, at least, difficult to deal with.

[English]

The Chair: Mr. McKay.

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

When the banks were here on the Bill S-5 legislation, one of their complaints, as I recollect, was the endless amount of time they spent in protracted litigation over systemic complaints. There was no effective means by which they, as participants in the system, could bring closure. Every time they thought they had a solution to the particular complaint, the ground shifted out from underneath them and there was a new complaint. One bank in particular complained about a 9-year exercise going through the commission about a particular issue.

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I'm interested in knowing how you are going to specifically mandate alternate dispute resolution so these complaints get dealt with in a timely fashion.

Ms. Michelle Falardeau-Ramsay: I cannot speak about that specific complaint because I have no idea what it is, but generally speaking when we receive a complaint we deal with that complaint. Sometimes there might be amendments, but that happens very seldom because the court renders a decision that prevents the amendment of complaints.

To come back to your question about the use of mediation, we think there's a strong possibility of being able to settle many complaints even before they become written complaints filed with the commission. I believe the more time you spend on a complaint, the more the viewpoint of the people involved becomes crystallized, and they don't want to get out of it. It's much better if you start at the beginning and try to arrive at an agreement that will at least partly satisfy both parties.

Mr. John McKay: Is there a means by which you can procedurally mandate that before it gets into a crystallized point of conflict?

Ms. Michelle Falardeau-Ramsay: At the moment we have no statutory authority to really do that.

Mr. John McKay: On that question, do you feel you need statutory authority to do that?

Ms. Michelle Falardeau-Ramsay: I don't think so personally, and that's why we're going to do it, because you can go very far without a statutory authority.

Mr. John McKay: I would assume the commission has a pretty wide latitude to set its own rules and regulations.

Ms. Michelle Falardeau-Ramsay: Yes, and that's why I think it's important for us to do something like that. It's why, when I was answering Mr. Forseth's question some minutes ago, I said this is one area that is part of our action plan for the next three years. We feel we can probably settle a good number of cases that way without waiting for the official or statutory conciliation process that is provided in the act, but after the investigation.

Mr. John McKay: Are you as optimistic that you can do that with cases of systemic discrimination as you can with the complaints of individual discrimination?

Ms. Michelle Falardeau-Ramsay: That might be very difficult, because now the only cases of systemic discrimination we have are pay equity cases. It's interesting, because we don't have any cases with the banks on pay equity.

Mr. John McKay: My recollection was this was in the category of duty to accommodate. Every time they accommodated, it seemed to move again and there was another duty to accommodate. There was kind of an ever-expanding concept of duty to accommodate.

Ms. Michelle Falardeau-Ramsay: I think what they were referring to was that if, for example, a blind person asks to be accommodated in a certain fashion and it's settled for the blind person, then someone else who is deaf might come and another type of accommodation would be required.

Mr. John McKay: But that would be a secondary complaint, I should think.

Ms. Michelle Falardeau-Ramsay: No, it would be a completely different complaint from somebody else.

Mr. John McKay: That's my point.

Ms. Michelle Falardeau-Ramsay: If there was the possibility of dealing with these issues in a systemic way, it would be much easier for all parties involved.

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In order to do that, though, we would have to have statutory authority. We cannot at the moment accept a complaint that would be systemic in nature. We might try to alleviate that problem up to a certain extent by what I have mentioned earlier—trying to identify at the beginning cases that we might group together—but if it remained that those cases were individual cases, then we could try to do that.

Mr. John McKay: Again, could you do that by means of your own internal rules and procedures rather than legislative amendments?

Ms. Michelle Falardeau-Ramsay: Well, yes and no, because we would never be able, for example, to deal with cases like that as one case if we went to tribunal. The legislation would prevent us from doing that. But we could, for example, group those cases as far as investigation and mediation are concerned.

Mr. John McKay: My second question has to do with your use of outside counsel and the farming out of work for private lawyers. I see that your gross budget is about $1.8 million.

I didn't follow the response to Mr. Forseth's question so well. What did you spend on outside counsel last year?

Ms. Michelle Falardeau-Ramsay: About $225,000.

Mr. John McKay: Was that spread over a number of cases or was that related to one or two cases?

Ms. Michelle Falardeau-Ramsay: It was spread over a certain number of cases. As I explained, some cases will be because it would be more cost-efficient to have a lawyer from the outside because it's in Vancouver, for example, or in the Northwest Territories.

Mr. John McKay: Is that a usual pattern, that you spend a little in excess of 10% of your budget on outside counsel?

Ms. Michelle Falardeau-Ramsay: No, not necessarily. I don't think so.

I think I will ask Mr. Hucker to answer on that, because I am not as familiar with the numbers from the previous years.

Mr. John Hucker (Secretary-General, Canadian Human Rights Commission): Thank you, Madam Chair.

There's been a pattern over the last several years of spending a certain proportion of our legal budget on outside counsel. I can't give you an exact figure, but it would be somewhere between 5% and 12%, I would think.

Mr. John McKay: This is in the range, then.

Mr. John Hucker: This is not unduly high, no.

Mr. John McKay: What about the Zundel case? How much of your resources did the Zundel case use up?

Mr. John Hucker: The Zundel case took a considerable amount of our resources. I don't have the exact figure here, but I would think at least two-thirds of this would have gone on the Zundel case.

Mr. John McKay: Would it all have been billed in the same year?

Mr. John Hucker: No.

Mr. John McKay: Billed over a couple of years?

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

Mr. John McKay: Is there an outstanding account?

Mr. John Hucker: There would be an outstanding account, yes.

The Chair: Is it still ongoing?

Mr. John Hucker: It is ongoing but in a limited way. I think it's ongoing but likely to be minimized in the next few months. The substantial part of that has already been expended.

Mr. John McKay: So two-thirds of the $225,000 is on Zundel, which would be about $150,000, and you've received previous billings in previous years?

Mr. John Hucker: Correct.

Mr. John McKay: Estimated in the same range?

Mr. John Hucker: No, I would think considerably less. I would think in total you'd be looking at $250,000.

Mr. John McKay: That's $250,000 in and another $50,000 to go?

Mr. John Hucker: No, I think that would be the total.

Mr. John McKay: So you anticipate a quarter of a million dollars on Zundel.

Mr. John Hucker: Yes.

Mr. John McKay: You would spend roughly that on outside counsel for the entire year, or in one budget year, at least.

Mr. John Hucker: Well, Zundel was a big case. Zundel was an important case.

Mr. John McKay: Yes.

Finally, I'm assuming that you represent the commission from time to time outside the country, which necessarily entails your travelling outside the country.

Is it you, Madam Chair, who is the sole representative or do other representatives travel from time to time on behalf of the commission, representing the commission?

Ms. Michelle Falardeau-Ramsay: Many people in the commission travel outside the country on and off. For some it's because they are experts in a particular area, and they go to help in that area, but most, if not all, of these travels are usually funded by CIDA or Foreign Affairs or the United Nations. A very small part of our budget goes to—

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Mr. John McKay: Do you do some of the travelling as well?

Ms. Michelle Falardeau-Ramsay: Yes, I do.

Mr. John McKay: How much travelling did you do last year?

Ms. Michelle Falardeau-Ramsay: Last year I went to India in January. Then I went to Merida for the Network on International Human Rights institutions through the UN Centre for Human Rights. I went to Indonesia because we have an agreement with the Indonesian human rights commission where we have one full-time employee of the commission who is on loan there. It was for a seminar where I spent three days.

I was in Norway for three days at the request of the Norwegian government. They paid for it. They wanted me to explain the Canadian human rights system of promotion and protection of human rights.

I was in Geneva last month for three days to attend the United Nations Commission on Human Rights. There was a vote on human rights institutions. At the same time, we had a meeting of the network of the national human rights institutions for the protection and promotion of human rights under the auspices of the Office of the Human Rights Commissioner of the United Nations.

Mr. John McKay: How much time does that mean you are outside of the country?

Ms. Michelle Falardeau-Ramsay: Usually it's three or four days at a time. It might be a month or a month and a half.

Mr. John McKay: That would be your travelling outside of the country time.

Ms. Michelle Falardeau-Ramsay: Yes.

Mr. John McKay: Thank you, Madam Chair.

The Chair: Mr. DeVillers.

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

[Translation]

I would like to hear your comments on the ruling of Justice Muldoon in the Bell Canada case, regarding possible implications for pay equity complaints that will be brought before the Commission, and more specifically on the role of unions which are involved in salary negotiations and which will then bring complaints to your Commission.

Ms. Michelle Falardeau-Ramsay: We do not agree completely with Justice Muldoon's ruling. First of all, we feel that...

Mr. Paul DeVillers: Has there been an appeal?

Ms. Michelle Falardeau-Ramsay: Yes, the ruling has been appealed.

Mr. Paul DeVillers: Yes.

Ms. Michelle Falardeau-Ramsay: We feel that it goes against most of the case law on pay equity, including the ruling made by the Supreme Court on that point in particular in the SEPCA case.

I believe that we have dealt with Bell Canada in a very appropriate and fair manner. It should also be kept in mind that Bell Canada, if I remember correctly, presented seven motions to the Federal Court in this particular case.

I am very hopeful that the Federal Court will rule in our favour. I do not think that it will change the situation very much for the time being. First of all, that case is unique and the ruling applies specifically to the facts involved. The ruling could not be applied to any other case because the facts and calculations would necessarily be different.

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I therefore do not believe that this ruling will have a significant impact on the other pay equity cases that are currently before the Commission.

Mr. Paul DeVillers: What do you think of the comments by the judge regarding the role of unions?

Ms. Michelle Falardeau-Ramsay: I think that unions do have a role to play. If I am not wrong, the Labour Code states that a union is the organization representing employees and that it represents them especially in grievance cases. When an employee launches a grievance and wants to go to arbitration, if the union does not want to proceed that way, there will be no arbitration.

Where pay equity is concerned, I believe that the same principle of representation should apply. I do not think that a union is required to get the signature of each person involved, in the same way that it will not get the signature of everyone involved when it negotiates changes to collective agreements. I think that the same type of structure can apply.

Mr. Paul DeVillers: Thank you, Madam.

[English]

The Chair: I just have a couple of questions. I'm looking at table 3 on page 15 of the estimates. Mr. McKay was asking questions about legal services. As I read this, I see under goods and services, the line professional and special services, the number for 1997-98 of $2,139,000. Does that include outside counsel? What does that number represent?

Ms. Joanne Baptiste (Director, Corporate and Personnel Services Branch, Canadian Human Rights Commission): You're on page 15, are you?

The Chair: Yes. I'm on supplementary information, page 15, table 3.

Mr. John Hucker: Madam Chair, that figure of $2.1 million includes more than the outside legal...the inside or indeed the contracts for legal. It includes money that is spent on the case management system, which is a computer-based system to enable us to track work complaints in the system. We've been developing that and refining it. So the amount includes a certain proportion of expenditures there. We have also put in place a new system for supporting our employment equity activities with the new audit powers we have to undertake employment equity audits. That is also included in that figure of professional and special services.

The Chair: Okay. Does this include your auditors? Where are they?

Mr. John Hucker: No, it does not include the auditors. The auditors are staff people and are included in the salaries at the top of the page under the heading of personnel.

The Chair: Does that include interpreters? What does it include?

Mr. John Hucker: Maybe Mr. Pelchat can elaborate.

Mr. Denis Pelchat (Chief, Financial Services, Canadian Human Rights Commission): Professional services include all the costs, as Mr. Hucker said, that are related to the development and maintenance of the complaints management system. This is our tracking system and also includes the new system we put in place that we developed in 1997-98, legal services, and the training of the commission employees. It includes outside lawyers, part-time commissioners fees and expert witnesses we hire to go in front of the tribunal, court reporting fees, translation services, and all these types of costs.

The Chair: You don't break this out very well for us, do you? I mean, that's a lot of disparate things under one roof. Under professional and special services, you could hide a lot...if I were of a suspicious nature.

What do you mean by rentals? What are you renting for $188,000 a year? Is that equipment?

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Mr. Denis Pelchat: Yes.

The Chair: Do you own any vehicles?

Mr. Denis Pelchat: We own a vehicle, yes.

The Chair: How many?

Mr. Denis Pelchat: There is one fleet car.

The Chair: Other subsidies and payments—what's that? It's not very much money, but what is it?

Mr. Denis Pelchat: It could be interest. It could be miscellaneous expenses we cannot allocate elsewhere.

The Chair: Out of transportation and communications, how much of that is transportation and how much is communications? Does that include your phone system?

Mr. Denis Pelchat: It includes the phone system and the long-distance calls.

The Chair: How much of it is transportation?

Mr. Denis Pelchat: I don't have the figure, but we could give you that later if you want.

The Chair: Okay. I'd like to know how much of that is international transportation, too.

Mr. Denis Pelchat: Most international trips are covered through CIDA or External Affairs.

The Chair: I'd still like to know how much the commission is spending on them.

Information—what does that mean?

Mr. Denis Pelchat: Information is printing services, publishing, media relations and any expenditure related to promotion.

The Chair: It's $396,000 a year? Is that right?

Mr. Denis Pelchat: Yes.

The Chair: Okay. How do you choose your outside counsel?

Mr. John Hucker: We choose basically on a referral basis. We have an informal list that our general counsel maintains, and we call around on an informal basis. Primarily we select people who have some expertise in the area of human rights.

The Chair: What cities do they come from?

Mr. John Hucker: It depends on where the cases arise. We've retained lawyers, for example, in Vancouver, as the chairperson said. We've retained lawyers in Alberta. If there's an important case in Vancouver, we would retain a lawyer who has a good reputation there.

We would call the provincial commission to ask it to recommend names. We would call members of the bar there and get references. We would hire a lawyer in Vancouver on that basis. Similarly, in Edmonton we have hired lawyers, and in Toronto likewise.

The Chair: There's more to Ontario than Toronto, you know. This is where I'm going with this.

Mr. John McKay: It's heresy.

The Chair: I know very good lawyers in London and Windsor. Most of the good ones are in Windsor, and they're a lot cheaper than those Bay Street boys, you know. You ought to try that. You could travel them and still get a lower hourly rate.

Mr. John Hucker: We'll keep that in mind, but I think our budget for outside counsel will likely go down, rather than up.

The Chair: Then you ought to hire people from other communities besides Toronto.

When you're hiring these lawyers, do you ask them to bid on an hourly rate?

Mr. John Hucker: Yes, we do. We ask them to bid and we ask them to discount their usual rate. We see this not as pro bono, but certainly for a non-profit organization they usually discount their regular hourly rate.

The Chair: Sure, and they won't have any receivables with you either. They shouldn't have to do anything to collect. How quickly do you pay the account?

Mr. John Hucker: I would have to ask Mr. Pelchat.

Mr. Denis Pelchat: Quickly.

Mr. John Hucker: They don't have to chase us, if that's your point.

The Chair: Good for you.

I'd like to see you cast your net a little farther. There are very good lawyers outside of the Toronto-Montreal-Ottawa capital city lines. I can tell you that most of them will work less expensively, have the same kind of expertise, and be quite fair with you on travel disbursements. That's my little bid for the county townsfolk.

Mr. John Hucker: We hear you, Madam Chair.

The Chair: Yes. How much of your budget did you use for employment equity auditing?

Mr. John Hucker: We have the breakdown. It's approximately $1.6 million.

The Chair: Okay. Thanks.

Ms. Bakopanos.

Ms. Eleni Bakopanos (Ahuntsic, Lib.): Do you want to go first, Mr. Forseth? That's okay. Mine's a very simple question. Go ahead.

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Mr. Paul Forseth: I was just looking on page 17. It looks like the 1997-98 estimated total net program cost is $16,741,000.

For the average taxpayer out there who really doesn't know too much about what the commission does, they might want some kind of a measure to say that we're spending this much money in this year, so how many cases were resolved. Then they would divide the number of cases by the total expenditure.

They would say that this is a very gross measure, but when you put it year by year from the time the commission was created, then they could see a trend: is the cost per case generally going up or down? If there was a particular problem in one year, it could be identified like the Zundel case, which maybe really threw things out of whack.

That kind of simple measure sometimes can tell quite a story. I wonder if you have some kind of an estimated cost that we could divide by the number of cases you're dealing to represent activity by the expenditure.

Ms. Michelle Falardeau-Ramsay: That's very difficult to say, because we do much more than cases, as you know. You have to add the audits to those cases, and you have to also add all the education information and work that we're doing that is part of our mandate. It's quite difficult to tell you exactly what it would cost by case. You cannot take this amount and divide it by the number of cases, because that's only a part of what we do. Do you understand?

Mr. Paul Forseth: I know, but I think the average person in my community would like to do that. It's very easy with a sub-reference to indicate that you have educational services and then explain what the activity is.

Still, as a gross value-for-money measure, especially on a comparative basis—the benchmarks are within yourself—from year to year, looking at what the commission is doing in the beginning versus now and what your projections are, that kind of measure, even though it's very rough, is still very helpful for the average taxpayer to maintain political support or whatever. In the final analysis, we all have to defend what we're doing to the public.

Ms. Michelle Falardeau-Ramsay: One thing for sure is that the cost has gone down in the last few years because we have had quite good cuts in the last few years. Since 1994, I think that was about 27% when we included the tribunal and 16% with the tribunal excluded.

I suppose we could probably arrive at one type of description of how much it would cost per case by looking at the anti-discrimination budget and part of the legal service budget. As I said, it's very difficult. You would have to input some part of the corporate costs because, for example, the audits we are going to do this year are also going to cost money. Do you see how difficult it is?

Mr. Paul Forseth: Are you able to just say on a year-to-year basis how many new cases came in—

Ms. Michelle Falardeau-Ramsay: Yes.

Mr. Paul Forseth: —how many you've got in process—

Ms. Michelle Falardeau-Ramsay: Yes.

Mr. Paul Forseth: —and how many files were closed?

Ms. Michelle Falardeau-Ramsay: For sure. This is all in our annual report.

Mr. Paul Forseth: Okay. Thank you.

Ms. Michelle Falardeau-Ramsay: You're welcome.

The Chair: Ms. Bakopanos.

Ms. Eleni Bakopanos: In your presentation you mentioned the fact that one of your priorities is to improve the representation of visible minorities in the federal public service.

I worked a long time in the Quebec government, and I was a member of the Treasury Board advisory commission on employment equity for the cultural communities. One of the things I found to be a stumbling block was that people, when they were filling in the form for employment, often did not check off the fact that they belonged to a specific group. The logic behind that was that they felt they would be discriminated against inversely. In other words, if they identified themselves as a visible minority, they would not get the job. I kept trying to tell them that this was not the way it works. We needed to know who they were, because on paper we cannot see colour, ethnicity, or religion.

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There's a real reticence in terms of people putting that down, and it has become harder and harder, in my experience, with second- and third-generation Canadians. It's even more so the case.

I need some guidance this morning. In fact, the judiciary appointments were before this committee also. This issue came up because they don't have statistics in terms of the number of visible minorities who applied. Again, if they don't identify themselves, how can the commissioner then provide those statistics to the government or even to this committee? It has been an ongoing problem for the last 15 years that I've been involved in this.

I was wondering how you were going to get around that. If you're going to be working on specific policy promotion and compliance initiatives to help the government improve its record in terms of visible minorities, how are you going to get around the fact that second- and third-generation people, who are ones who are educated and have the experience, do not wish to identify themselves?

We had another experience with Statistics Canada this year whereby people were, I would say, insulted to a certain extent because they felt they shouldn't have to identify themselves in that way.

Of course, we could spend two hours discussing this.

Ms. Michelle Falardeau-Ramsay: It's very interesting that you raised the issue. I remember that under the old Employment Equity Act we had a big problem like that at the beginning. As you know, this act applied only to the private sector, not to the public sector. What happened was that even in the first years the returns were very low. With a good explanation to the people of what it meant, to the employees, now we get mostly a 90% return.

We hope the same type of strategy could be used with the public service in explaining exactly why these questionnaires are sent to the people. The questionnaires are anonymous and they won't be used for any other purpose than an employment equity purpose. We hope we'll get the same rate of return as we're getting in the private sector.

Ms. Eleni Bakopanos: Well, thank you. It is an issue that's been of concern for a long time. As I said, I'm more concerned now than in the past because it's the second and third generations, and even the fourth, who would not wish at all to be identified. Sometimes they associate that with merit rather than discrimination. But I hope we'll have another chance to discuss it off the record.

Ms. Michelle Falardeau-Ramsay: As you know, this program only started last October. We'll know better next year, but we are urging the government and the various departments to do that type of explanation so that the surveys will come back with a good number.

Ms. Eleni Bakopanos: I hope so. Thank you very much.

Ms. Michelle Falardeau-Ramsay: You're welcome.

The Chair: I wanted to ask about your statistics on complaints based on race or colour. It's on page 14 of your annual report. It says that last year you received 201 complaints, but none of them were sent to the tribunal. Only 17 of them were withdrawn or abandoned by the complainant, so it looks like the others were effectively dismissed by the commission.

I'm wondering if you could explain these figures because, anecdotally and otherwise, it appears that some forms of racism in Canada seem to be quite virulent these days. I'm wondering why this is not reflected in the cases that you sent to the tribunal.

Ms. Michelle Falardeau-Ramsay: You have to look at the rest of the disposition of the complaints as you have seen them there. A certain number of complaints, as you see here, have been settled during investigation or at conciliation. Some have been referred to alternate redress mechanisms; 79 of them, in fact.

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The Chair: What does that mean, “alternate redress mechanisms”?

Ms. Michelle Falardeau-Ramsay: For example, you will have a grievance procedure where there is a provision in the collective agreement that deals with discrimination, and then it will be sent, as our act is a last resort, a remedy. So that might be the case.

In a case like that, though, if the complainant feels the arbitration has not dealt with the discriminatory aspect of his grievance, that person can always come back to the commission so that the discriminatory aspect of it will be dealt with. But in most instances, the discriminatory aspect of it is dealt with.

For example, you can have a case that will go to the Public Service Staff Relations Board on the basis of discrimination based on race. Then we will send them there before they come to the commission.

You have also lots of cases that have been discontinued; 213 cases. It might be because there has been a private settlement between the parties. It might also be because the complainant decides not to go further because they want to turn the page and just go on with their life. As well, in many of those cases we cannot reach the complainant any more. The complainant won't give us his new address or phone number. We will try usually many times—on average, ten times—to reach the person. We'll look in the phone directory and over the Internet to try to find out where that person might have gone, but sometimes it's impossible to reach that person. So those account for the 213 cases that were discontinued.

You have 61 cases that were dismissed for lack of evidence. Sometimes there is absolutely no evidence whatsoever after the investigation, and you just can't go on with that case. You have also cases where the matter was outside the jurisdiction of the commission, or cases where, really, further investigation was not warranted.

Those are the explanations of why so few cases were sent to tribunals. When we send a case to tribunal, we have to look at various issues. First, we have to look at whether or not further investigation is warranted. Second, following a decision of the Federal Court, we have to decide whether or not we have some chance of winning that case so that resources won't be abused. So we have to look at those two possibilities. That's how we decide.

We see cases, for example—and not necessarily cases of race or colour or national or ethnic origin—where a very good settlement has been offered to the complainant, a settlement such that a tribunal would not grant it. For example, you sometimes will have damages offered that are much higher than what the law allows the tribunal to give. Then the commission might decide, okay, in view of the fact that this settlement was offered, it seemed reasonable in the circumstances, and it was not accepted by the complainant, the case won't be sent to tribunal.

The Chair: So the person is left with nothing.

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Ms. Michelle Falardeau-Ramsay: Well, yes, because that person is told that's what's going to happen. We will usually then go back to the person through our staff, and the staff will say they'd better have a second look at it. Sometimes we will even send it back to conciliation a second time, trying to get the person to accept this settlement. We have a duty to use our resources in such a way that they are not used for nothing. We represent the public interest.

The Chair: It's a tough issue, because it makes you gatekeepers, doesn't it?

If my human rights are violated or I believe they are violated and everything else is equal, if it's within federal jurisdiction and everything else is there, and I come to you and I want a hearing, and you're messing around in the file in the sense that you're in there investigating, managing and what have you, and I as a complainant really want a hearing, you're telling me that you keep the gate. It's not like a court. You are gatekeepers of your own process, and you will deny your process to someone.

Ms. Michelle Falardeau-Ramsay: It's exactly why we exist. We exist in order to sift the cases. That's exactly our raison d'être. That's why the act is there; otherwise there would only be a court of justice. People would go directly to a court of justice. That has recently been a decision of the court of appeal, which prevented that type of system that exists in Quebec, where people could go directly to the tribunal. The court said no, because then it's exactly as if it were a court of justice.

The Chair: Yes, I see.

Ms. Michelle Falardeau-Ramsay: I know it is difficult, but we also have to remember that our legislation is there to remedy the situation. If we find that the situation could have been remedied, would the person agree to the remedy suggested? Then we have to make a difficult judgment call as to whether or not it would be in the public interest to go further to tribunal and spend that money over there.

The Chair: When was the last time you had a race case go to the tribunal?

Ms. Michelle Falardeau-Ramsay: We still have many cases that are heard. The NCARR cases would probably be the last.

The Chair: How long ago was that?

Ms. Michelle Falardeau-Ramsay: The decision came out in March.

The Chair: When was it referred to tribunal, in which fiscal year?

Ms. Michelle Falardeau-Ramsay: When was the last time we referred a case? Probably last month.

The Chair: So in the year 1998, you have referred a case based on race to the tribunal.

Ms. Michelle Falardeau-Ramsay: Yes.

The Chair: But you didn't in 1997.

Ms. Michelle Falardeau-Ramsay: It happens. You see, it depends on the cases we receive.

The Chair: Did you in 1996?

Ms. Michelle Falardeau-Ramsay: Oh yes.

The Chair: Does anyone else have any questions?

Thank you very much.

Ms. Michelle Falardeau-Ramsay: Thank you very much.

The Chair: The meeting is adjourned.