Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Canada (Ratification: 1964)

The Committee notes the observations provided by the Canadian Labour Congress (CLC) referred to in the Government’s report.

Legislative developments. Federal. Recalling its comments on the repeal of section 67 of the Canadian Human Rights Act (CHRA), which previously limited the access of First Nations peoples to the protection of the CHRA, the Committee notes that the Government has adopted several measures under the National Aboriginal Initiative in order to raise awareness among First Nations peoples of the CHRA. The Committee notes that in this context the Canadian Human Rights Commission (CHRC) participated in regional discussions organized by the Congress of Aboriginal Peoples and the Assembly of First Nations; it also collaborated with the Native Women’s Association of Canada in order to develop comprehensive tools with the aim of better informing women of the First Nations peoples of their rights under the CHRA, and participated in activities organized by the Indigenous Bar Association, which aimed to develop community-based dispute resolution processes, taking into account the particular situation of certain groups such as women, children and persons with disabilities. The Committee asks the Government to continue to provide information on measures taken to raise awareness of the rights and protection offered by the CHRA among the First Nations peoples. The Committee asks the Government to provide information on the number and types of complaints filed before the CHRC by First Nations peoples, including with respect to the Indian Act, 1985, following the repeal of section 67 of the CHRA.

Legislative developments. Provincial. The Committee notes that the Alberta Human Rights Act was amended on 1 September 2010 and now includes sexual orientation as a prohibited ground of discrimination in employment. The Committee also notes the amendments to the Saskatchewan Human Rights Code, which the Government indicates were aimed at improving the timeliness of decisions by allowing appeals from the decisions of the Chief Commissioner to be made directly to the courts rather than first proceeding to the Human Rights Tribunal. The Committee also notes that the Ontario Integrated Accessibility Regulation (IAR) came into effect on 1 July 2011, establishing under the Employment Accessibility Standard requirements across the public, private and not-for-profit sectors for the inclusion of persons with disabilities in all phases of the employment life cycle, including recruitment, retention, career development and return to work. The Committee welcomes these developments, and asks the Government to continue to provide information on the legislation and policy developments at the provincial level, as well as regarding the impact of such measures. The Committee reiterates its request for such information regarding the territories.

Sexual harassment. Recalling its previous comments on the low number of sexual harassment complaints, the Committee notes that in 2009 the Canadian Human Rights Commission registered 105 complaints concerning sexual harassment, and that in 2010, 114 complaints were filed. The Committee notes that the Manitoba workplace safety and health regulations came into effect on 1 February 2011, requiring employers to protect workers from harassment in the workplace and to develop and follow a written policy providing a process to receive and investigate complaints of harassment, and to take corrective action. The Committee also notes that the New Brunswick Human Rights Commission adopted guidelines on sexual harassment in June 2011. The Committee asks the Government to continue providing information on measures taken to address sexual harassment through provincial legislation and policies, and to provide specific information on measures taken to prevent and address sexual harassment in practice. The Committee also asks the Government to provide specific information on labour inspection activities related to employers’ compliance with the obligation to develop a sexual harassment policy statement, as laid out by the Canada Labour Code, and to indicate the number and nature of violations detected by or reported to the labour inspectorate and any action taken, as well as any judicial or administrative decisions dealing with sexual harassment, including the remedies provided or sanctions imposed. The Committee once again asks the Government to provide information on the results of the review of the enforcement system as it relates to sexual harassment.

Employment equity designated groups. Women, visible minorities, persons with disabilities and aboriginal peoples. The Committee notes that currently under the Employment Equity Act (EEA), the four designated groups are defined as women, persons with disabilities, aboriginal peoples and members of visible minorities, and that the CLC favours the recognition of five equity-seeking groups, namely women, persons with disabilities, aboriginal peoples, racialized workers, and LGBT (lesbian, gay, bisexual and transgender) workers. The Committee notes the information provided regarding the developments in the representation levels of designated groups under the EEA, which has increased for women (from 41.7 per cent to 44.1 per cent between 2008–10 in executive positions within the public sector), and for visible minorities (from 9.2 per cent to 10.7 per cent between 2008–10 in the public sector), and appears again to have stagnated for aboriginal peoples and persons with disabilities. The Committee notes that the Government has set up initiatives to increase the employment rate of persons with disabilities, including through the labour market agreements for persons with disabilities and the Opportunities Fund for Persons with Disabilities. The Committee notes that following the Employment Equity Compliance Reviews conducted under the Federal Contractors Program (FCP), in 2009, 150 employers were ineligible to receive contracts exceeding 25,000 Canadian dollars (CAD) because they were found to be non-compliant or voluntarily withdrew from the programme. The Committee also notes from the Employment Equity Audits: Legislated Employment Equity Program (LEEP) that, in 2010, the CHRC completed 53 audits and found 32 employers to be non-compliant with the requirements of the EEA. The Committee also notes that the CLC encourages the Government to foster the use of “equity audits” within organizations and institutions. The Committee further notes that the Racism-Free Workplace Strategy, developed under Canada’s Action Plan against Racism, aims to promote equality of opportunity for visible minorities and aboriginal peoples, by setting up various activities to raise awareness on employment equity with the collaboration of employers, including through building local networks, providing practical tools, best practices, success stories and business cases. The Committee asks the Government to indicate whether any steps have been taken or are envisaged to modify the designated groups under the EEA in order to include LGBT (lesbian, gay, bisexual and transgender) workers, as recommended by the CLC, and to indicate any other measures to protect LGBT workers against discrimination. The Committee asks the Government to continue providing statistical information on the representation of designated groups and to indicate the specific measures taken to increase their employment rate, particularly with regard to aboriginal peoples and persons with disabilities. The Committee asks the Government to provide information on the impact of the measures taken under the labour market agreements for persons with disabilities and the Opportunities Fund for Persons with Disabilities. The Committee also asks the Government to indicate how the application of the EEA is monitored and enforced for non-compliant employers and to indicate whether there have been any judicial or administrative decisions regarding the non-compliance of employers. The Committee welcomes the detailed information on the FCP and asks the Government to continue providing such information, and to indicate whether consideration has been given to the recommendation of the CLC to foster the use of equity audits within organizations and institutions. Please provide more detailed information on the impact of the measures taken under the Racism Free Workplace Strategy to address discrimination against visible minorities in employment and occupation.

Court Challenges Program. The Committee recalls its previous comments requesting the Government to consider reinstating the Court Challenges Program (CCP), eliminated in September 2006, which provided assistance for test cases of national significance in order to clarify the rights of official language minority communities and the equality rights of disadvantaged groups. The Committee notes the Government’s indication that the Court Challenges Program has not been reinstated and that the promotion and protection of rights is fostered through legislation, judicial institutions and policies such as the Human Rights Program of the Department of Canadian Heritage, the Inter-Action Program of the Department of Citizenship and Immigration Canada, and the Women’s Program of Status of Women Canada. The Committee notes that the Government launched the Language Rights Support Program (LRSP) on 22 December 2009, setting up a panel of experts composed of nine members designated by the Minister of Canadian Heritage and Official Languages. The Committee recalls that, while funding under the CCP was partially restored with respect to language rights, in the context of the LRSP, it does not cover other non-linguistic minority and discrimination issues. Noting that the Government does not intend to reinstate the Court Challenges Program, the Committee asks the Government to indicate specifically the measures taken in order to ensure equal access to justice for aboriginal peoples, African Canadians and persons belonging to minority groups. The Committee asks the Government to provide more detailed information on measures taken under the Language Rights Support Program in order to foster equality of access to justice for language minorities, in particular, with respect to discrimination in employment and occupation and to indicate the results thereof.

Indigenous peoples. The Committee notes that initiatives have recently been launched to support training and improve employment opportunities for aboriginal peoples, including the Aboriginal Skills and Employment Training Strategy which resulted in more than 14,300 people finding employment and 7,000 returning to school between 2010 and 2011, and the Skills Partnership Fund, launched for 2010–15, also aimed at improving employment for aboriginal peoples. The Committee also notes that under the Aboriginal Skills and Employment Partnership, which has been extended until 2012, 36 projects are under way with a target of 8,000 people obtaining employment. With respect to aboriginal women, the Committee notes the Government’s indication that employment projects were funded through the Human Resources and Skills Development Canada’s Aboriginal Skills and Training Strategic Investment Fund, and the Aboriginal Skills and Employment Partnership Program, covering a range of activities, such as training and work experience for aboriginal single mothers. The Committee notes the New Brunswick initiatives to improve access to employment for aboriginal communities through training and job placement projects, including the Joint Economic Development Initiative (JEDI), the Aboriginal Workforce Development Initiative (AWDI), and the Aboriginal Employment Services Initiative (AESI). The Committee also notes that the Labrador Aboriginal Affairs (LAA), has been mandated to coordinate various policies and programmes related to issues faced by aboriginal peoples, including the Labrador Aboriginal Training Partnership, which aims to facilitate training and employment for aboriginal peoples in the resource sector, and that the Ontario Northern Training Partnership Fund was launched in July 2010 aimed at providing skills training for aboriginal and non-aboriginal northern Ontarians. The Committee asks the Government to provide information on the impact of the initiatives taken by the Government to improve the employment opportunities of aboriginal peoples, including statistical data on their representation within different sectors and occupations, and to provide information on the number of people securing employment following the training provided under the Aboriginal Skills and Employment Training Strategy and under the Aboriginal Skills and Employment Partnership. The Committee asks the Government to provide more specific information on measures taken, including under the Aboriginal Skills and Employment Partnership Program, to increase aboriginal women’s employment and to address the discrimination they face in employment and occupation. The Committee welcomes the detailed information provided on the different initiatives launched in the provinces and asks the Government to continue providing such information as well as information on the impact of such initiatives, including in the territories.

Migrant workers. The Committee notes the Government’s indication that in April 2011, regulatory amendments were introduced to the Temporary Foreign Worker Program, in order to provide better protection for temporary foreign workers, including live-in caregivers, which include measures to ensure that employers offer adequate accommodation to caregivers and that they have sufficient financial resources to pay the wages being offered. Changes were also brought to the Live-in Caregiver Program in 2010, including offering emergency processing and delivering of work permits in cases where live-in caregivers need to leave the employer’s home urgently, and an enhanced employment contract with new mandatory clauses, including with respect to paid benefits. The Committee notes from the observations provided by the CLC that in April 2010, eligibility requirements for permanent residency applications from live-in caregivers were changed, allowing two options to calculate their work-time experience – 24 months of full-time employment or a total of 3,900 hours in authorized full-time employment – and eliminating the obligation to pass a second medical examination. The CLC also notes that if the live-in caregiver applies for permanent residency, and the application is unsuccessful, they may be deported, thus the threat of deportation may reduce the likelihood of caregivers reporting excessive work hours or inadequate living conditions. The Committee welcomes the new Ontario Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), adopted on 22 March 2010. The Committee notes that the Act prohibits employers and recruiters from charging placement fees to foreign live-in caregivers, from taking reprisals against caregivers exercising their rights, withholding documents, and provides for the use of enforcement mechanisms established by the Ontario Employment Standards Act, 2000 (ESA). The Committee notes that under the legislation, the Ontario Ministry of Labour conducted 42 inspections and closed 13 claims between 1 April 2010 and 31 March 2011, and that 67 claims were filed by live-in caregivers. The Committee notes that amendments have been drafted to the Nova Scotia Labour Standards Code aimed at improving protection for temporary foreign workers, such as prohibiting recruitment fees and other unfair treatment. The Committee also notes that in order to address barriers to the recognition of foreign qualifications, Quebec adopted Bill No. 53 on the Act to create the Office of Commissioner for complaints concerning mechanisms for the recognition of professional competence, amending the Professional Code (R.S.Q., Chapter C 26). Recalling the previous concerns raised regarding exploitation and abuse faced by migrant domestic workers under the Live-in Caregiver Program, as well as the issues raised by the CLC, the Committee asks the Government to provide specific information on any violations reported or detected, and any sanctions imposed or remedies provided. Please also provide a copy of the regulatory amendments to the Temporary Foreign Work Program and the Live-in Caregiver Program, and provide specific information on the impact of these changes in protecting migrant workers from discrimination in employment and occupation on the grounds set out in the Convention and on any other measures taken in this context. The Committee also asks the Government to provide information on the application in practice of the Ontario Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others) of 2010, with respect to any complaints brought before the courts on the rights of migrant domestic workers under the Live-in Caregiver Program, as well as information on the status of the amendments to the Nova Scotia Labour Standards Code. Please provide information on any other legislative or practical measures taken in the various jurisdictions in order to better promote equality of opportunity and treatment of migrant workers in employment and occupation.

Enforcement. The Committee notes the detailed information provided by the Government concerning discrimination complaints brought before the CHRC, and registered in British Columbia, Ontario, Quebec, Alberta and Manitoba. The Committee also welcomes the information provided by the Government on court and tribunal cases related to discrimination in employment. The Committee asks the Government to continue providing such information, and to include information for the provinces of Nova Scotia and Saskatchewan, and the territories.